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
...