No. 80794185 (1999). EMPLOYEE: Ruthie L. Robinson.

• Case Date: June 24, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 80794185 (1999). EMPLOYEE: Ruthie L. Robinson COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Ruthie L. Robinson EMPLOYER: General Motors Corporation INSURER: General Motors CorporationBOARD NO. 80794185REVIEWING BOARD DECISION (Judges Smith, Wilson and McCarthy)APPEARANCES Joseph P. Franzese, Esq., for the employee Robert P. Jachowitz, Esq., for the self-insurer SMITH, J. The employee appeals the decision of an administrative judge denying her claim for § 36 specific compensation for permanent impairment and § 30 medical benefits. The employee contends that the decision is arbitrary and capricious, and contrary to law, because the judge adopted both the decision in a prior proceeding and the § 11A impartial medical examiner's report on which that decision was based, and was biased against the employee's current medical expert. The case presents the perplexing administrative law question of whether an administrative judge in the Department of Industrial Accidents may rely on either the reputation of, or his prior experience with, a familiar expert witness. We vacate the finding about the doctor's reputation and recommit the case for further findings of fact regarding the expert's opinion. Ruthie L. Robinson received a personal injury to her lower back on August 18, 1985. The injury arose out of and in the course of her employment on the General Motors assembly line. The self-insurer accepted liability and paid temporary total incapacity benefits until their exhaustion in July 1990. (Dec. 2-3.) Because of her date of injury, she was only entitled to continuing weekly compensation if she could prove that the injury rendered her totally and permanently incapacitated. See G. L. c. 152, § 35, as amended by St. 1981, c. 572, § 2 (For this date of injury, there is an aggregate dollar maximum of $85,266 which is exhausted by payment of either § 34 or § 35 benefits, or any combination of both). Robinson filed a claim for permanent and total incapacity. Dr. James Bono was appointed as the § 11A impartial medical examiner on the claim. Dr. Bono reported that he could not find any orthopedic reason why Robinson could not return to her heavy duty work on the automobile assembly line, that she was partially disabled due to subjective complaints that did not correlate with objective findings, and that she was capable of returning to part-time sedentary employment. (Judicial Notice # 1, Decision filed May 16, 1995, at 6.) The judge adopted Dr. Bono's opinion and therefore denied the § 34A claim. (Judicial Notice # 1 at 7.) Within months of that decision, Robinson switched doctors and, in September 1995, began treating with Dr. Emilio Jacques. (Dec. 6.) Thereafter, relying on a report from her new doctor, Ruthie Robinson filed the current claim for § 36 specific compensation for permanent impairment and § 30 medical bills. 1 The insurer filed a notification of denial, asserting that "[a]ny permanent disfigurement, functional loss, and Section 13/30 not related to original injury." (Insurer's Notification of Denial filed January 16, 1997.) 2 Despite the insurer's request to have the case assigned to the same judge who had handled the § 34A claim, for administrative reasons, the new claim was assigned to a different judge for conference. (Insurer Motion filed September 5, 1997; Letter from Senior Judge to Robert P. Jachowicz, dated September 9, 1997.) At conference before the new judge, the insurer identified "causal relation of medical expenses and loss of function to industrial injury" as the medical issues in dispute. (Conference Memorandum Cover Sheet, September 11, 1997.) After conference, the claim was denied and Robinson appealed to a hearing de novo. At the hearing, the insurer maintained its defense of no causation. (Dec. 2, 4; Insurer Ex. 1.) Despite the mandatory provisions of G.L. c. 152, § 11A, the judge allowed the parties to forego a § 11A impartial medical report and present their own medical evidence. 3 (Dec. 2.) The employee presented the opinion of her new doctor, Dr. Emilio Jacques, that she was unable to return to her prior work, needed ongoing medical care, and had a 20% permanent impairment according to the AMA Guidelines for Permanent Impairment due to chronic lower extremity radiculopathy and chronic pain syndrome caused by her industrial accident. (Employee Ex. 2.) She also presented a 1986 EMG report of lumbar radiculopathy affecting primarily the L4 and L5 roots, with mild ongoing denervation, (Employee Ex. 3), and a 1990 MRI report of a tiny central and slightly right-sided disc herniation that did not come in contact with the anterior aspect of the thecal sac at L4-5, and a mild-moderate diffuse disc bulge at L5-S1 with associated posterior bony ridging and a small central and right-sided disc herniation projecting towards the region of the right lateral recess. (Employee Ex. 4.) 4 The insurer presented 1990 reports of the employee's prior treating physician, releasing her to work with no restrictions and opining that she had made a full recovery without any residual effects or loss of function. (Ins. Exs. 2 5 and 3.) In addition, the judge took judicial notice of the entire board file. The earlier decision denying Robinson's § 34A claim, and the exhibits to that decision, including the § 11A impartial medical report and deposition prepared for that proceeding, the MRI and EMG reports, and the June 27, 1990 report of the employee's then treating physician, became Judicial Notice # 1 in the present case. (Dec. 1, 3.) Employee's counsel conceded at oral argument that the parties were aware of the judicial notice; the employee did not preserve an objection to it for appellate review. 6 In his decision, the new judge adopted...