Tsitsilianos, 110119 MAWC, 037772-05

• Case Date: November 01, 2019
• Court: Massachusetts

Emmanuel Tsitsilianos, Employee Worcester Housing Authority, Employer Massachusetts NAHRO SIG, Insurer No. 037772-05 Massachusetts Workers Compensation Decisions Commonwealth of Massachusetts Department of Industrial Accidents November 1, 2019          This case was heard by Administrative Judge Benoit.           Richard D. Surrette, Esq., for the employee.           John M. Dealy, Esq., for the insurer.           Long, Fabricant and Calliotte, Judges.           REVIEWING BOARD DECISION           LONG, J.          The employee's appeal from a decision denying his claim for § 34 temporary total and § 34A permanent and total incapacity benefits alleges, “[t]he administrative judge erred as a matter of law in denying the employee's motion to strike the 11A report of Michael Kahn, M.D.” (Employee br. 2.) Finding merit in the employee's argument that the impartial physician's opinion was tainted due to the doctor's possible review of non-medical material, we strike the § 11A report and deposition testimony, vacate the decision, and recommit it for the judge to allow additional medical evidence and/or a further impartial examination.          The lengthy procedural history of the claim outlined in the current decision provides an accurate backdrop for our analysis.

Two hearings have been held in this matter previously. Hearing decisions were issued by Administrative Judge Steven Rose on December 27, 2007 and by [the current Administrative Judge] on May 9, 2013. The Employee filed appeals to the Reviewing Board on each Hearing Decision.

With regard to the 2007 Hearing Decision, the Reviewing Board issued a Summary Disposition. Tsitsilianos' Case, 22 Mass. Workers' Comp. Rep. 364 (2008), affirming the Hearing decision and the Appeals Court affirmed the Reviewing Board Summary Disposition pursuant to Rule 1:28, Tsitsilianos' Case, 74 Mass.App.Ct. 1118 (2009).1

With regard to the 2013 Hearing Decision, the Reviewing Board issued a Decision, Tsitsilianos v. Worcester Housing Authority, 28 Mass. Workers' Comp. Rep. 165 (2014) affirming the Hearing Decision and there was no further appeal.2

The current claim in this matter was the subject of a §10A Conference on December 14, 2015. The resulting Conference Order dated December 22, 2015 denied the Employee's claim. The Employee appealed the Conference Order.

Pursuant to §11A, the Employee was examined by Michael W. Kahn, M.D., a Board-certified psychiatrist, whose Impartial Examiner report dated March 14, 2017, constitutes prima facie evidence of the matters contained therein. The Employee's Motion to Strike the Impartial Report of Michael W. Kahn, along with the Insurer's Opposition to the Employee, Emmanuel Tsitsilianos' Motion to Strike the Impartial Report of Michael Kahn, M.D., were reviewed and the Motion was denied. A hearing de novo took place before me on May 10, 2017. The insurer took the deposition of Michael Kahn, M.D. on June 6, 2017. Following the deposition, I received the Employee's Renewed Motion to Strike the Impartial Report of Michael Kahn, M.D., and the Insurer's Opposition to Employee Emmanuel Tsitsilianos' Renewed Motion to Strike Impartial Report of Michael Kahn, M.D. After I reviewed both documents, on August 15, 2017 I denied the Renewed Motion. The Insurer and Employee each submitted a Closing Argument in a timely manner. The record closed on August 29, 2017. I have carefully examined all the exhibits, the transcript of the deposition of Dr. Kahn, and the Closing Arguments.

The Employee's Closing Argument includes a request for Reconsideration of the Prior Denials of his Motion to Strike the Impartial Report. I have reconsidered the Motion to Strike The Impartial Report, and I deny it still.

(Dec. 2-3.)          The employee's initial Motion to Strike the Impartial Report of Michael Kahn, M.D. was filed after the impartial examination and before the hearing took place on May 10, 2017. The employee's motion alleged, in...