Sirasombath, 021820 MAWC, 06201-13

Case DateFebruary 18, 2020
CourtMassachusetts
Virouna Sirasombath Employee
Waters Corporation Employer
Liberty Mutual Insurance Corporation Insurer
No. 06201-13
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
February 18, 2020
         This case was heard by Administrative Judge Benoit.           Michael Ready, Esq., for the employee           Jessica Bobb, Esq., for the insurer           Long, Koziol and Calliotte, Judges.          REVIEWING BOARD DECISION           LONG, J.          The employee appeals from a decision denying and dismissing her claims for § 34, § 35 and/or §34A incapacity and §§ 13 and 30 medical benefits alleged to be due as a result of a chemical exposure incident that occurred on March 7, 2013. The employee presents several issues on appeal, most of which are interrelated and concern the § 11A impartial physician’s impartiality. Specifically, the employee argues that because the impartial physician, Dr. Brian Swotinsky, had previously been employed by the employer, and was employed by the insurer at the time he conducted the impartial examination, the report and deposition testimony of Dr. Swotinsky should have been stricken from the record. The employee further argues that the administrative judge’s findings of complexity and inadequacy and the allowance of additional medical evidence were insufficient remedies for the obvious conflict of interest, especially considering the judge’s specific reliance upon Dr. Swotinsky’s opinion in the hearing decision. We agree with the employee and vacate the judge’s decision. We strike Dr. Swotinsky’s report and testimony and recommit the case to the judge for the scheduling of a new impartial medical examination with a different doctor and for a new decision based on that medical evidence and any additional medical evidence that the judge, in his discretion, may allow.          The employee alleged an injury occurred on March 7, 2013, while working as a synthesis operator creating chemical compounds. While attempting to test a pump connection, the employee removed her respirator face mask and alleged that she inhaled ammonium hydroxide. She felt a burning sensation in her throat and on the left side of her face, had difficulty breathing, experienced shortness of breath, and began coughing. (Dec. 5.) The employee sought medical attention on March 12, 2013, and was advised to be out of work until April 8, 2013, and then to return to light duty for one month. The employee returned to work in April 2013, and her employment ended on September 30, 2013. (Dec. 5.)          The employee’s claims were denied by the administrative judge following a conference on May 24, 2017, and the employee’s appeal of the order prompted an impartial examination by Dr. Robert Swotinsky on August 3, 2017. (Dec. 2.) On August 25, 2017, upon receipt of the impartial report and some seven months prior to the hearing, employee’s counsel filed a “Motion to Strike the Report of the Impartial Physician Based on Bias.” (Dec. 3; Ex. 5.) The basis for the motion, when initially filed, was the impartial physician’s prior employment with the employer in the case, Waters Corporation. The crux of the employee’s argument in her initial motion to strike, which she maintained throughout the course of these proceedings, is as follows:
1. The employee was evaluated by Dr. Robert Swotinsky at the request of the Department of Industrial Accidents on August 3, 2017.
2. In his report dated August 6, 2017, Dr. Swotinsky states,
“This claim involves an exposure to ammonia at the Waters Corporation Taunton facility. From 1998 to 2007, I served as consulting occupational health medical director to Waters based in Milford, MA. I visited Waters’ Taunton facility several times.”
3. Impartiality is the cornerstone of the impartial medical examiner[’]s system, Martin v. Red Star Express, 9 Mass. Workers’ Comp. Rep. 670, 673 (1995).
4. The fact that Dr. Swotinsky was employed as the consultant occupational health medical director by the employer in this case raises the issue of bias and casts doubt on the impartiality of the report.
5. The report of Dr. Swotinsky should not be admitted into evidence
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