Right to Depose Impartial Physician

Either party has the right to engage the impartial medical examiner to be deposed for purposes of cross-examination. Notwithstanding any general or special law to the contrary, no additional medical reports or depositions of any physicians are allowed by right to any party; provided, however, the administrative judge may so order sua sponte or on a motion by a party.

Deposition Fee for Impartial Physicians

The fee for the provision of a deposition by any impartial medical examiner is $750 for the first two hours or any part thereof, and $100 additional for the third hour. This fee is paid by the deposing party directly to the physician; provided, however, that if the decision of the administrative judge is in favor of the employee, the cost of such deposition shall be added to the amount awarded to the employee and be paid by the insurer under the provisions of this chapter.

Conference Appeals

An administrative judge shall authorize the testimony by deposition of the impartial physician. The impartial physician's testimony may not be taken prior to the first scheduled MGL c. 152, § 11 or § 11A(2) hearing date as applicable, unless authorized by the administrative judge.

Discretionary Discovery

Pre-Hearing Impartial

The administrative judge's authorization of a pre-hearing impartial physician deposition must be in writing.

Medical Testimony

An administrative judge may authorize the submission of medical testimony by deposition on motion by a party or on the judge's own initiative, but only after finding the report inadequate.

Medical Complexity or Inadequacy

The required finding on medical complexity and/or inadequacy of the impartial physician's report may be made by the administrative judge prior to the first scheduled MGL c. 152, § 11 or § 11A(2) hearing date as applicable, but also may be made after the deposition of the impartial physician is filed.

Written Finding

The administrative judge's authorization of additional medical testimony must be in the form of a written finding that such testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician.

Additional Medical Testimony

Additional medical testimony may only be authorized pursuant to 452 CMR § 1.00.

Procedural Requirements

Notice by Moving Party

The moving party provides notice of the date, time, and place of the deposition to all opposing parties by certified mail, not less than seven calendar days before the deposition.

Purpose of Deposition

As medical evidence, the deposition is admissible, in whole or in part, in proceedings before an administrative judge.

Time Limit

No deposition of an impartial physician exceeds three hours unless all parties and the physician agree, or unless authorized in writing by the administrative judge on a motion by a party.

Timing of Depositions

All depositions are submitted at the time requested by the administrative judge, but no more than sixty calendar days from the close of lay testimony. A party may motion the administrative judge for an extension for cause for no more than thirty calendar days.

Extension of Time

Any request for extension must be made in written motion by a party and is subject to the discretion of the administrative judge.

Unavailability of Impartial Physician

Where an impartial medical examiner who has submitted his or her report is rendered unavailable, or makes him or herself unavailable for deposition, either party may file a motion seeking a ruling that the impartial medical examiner is unavailable.

a. A ruling of unavailability means that the impartial medical examiner's report is inadequate and that additional medical evidence is allowed.

b. Upon such a ruling, the administrative judge allows a reasonable extension of time for submission of such additional medical evidence, not to exceed forty-five days.

Practice Note:

The report of an impartial physician who dies before being deposed may not enter into evidence. Martha Padilla v. North Coast Seafood v. Eastern Casualty Ins. Co. 19 Mass. Workers' Comp. Rep. 98 (2005). "The employee argues that the decision is tainted by error of law, due to the judge's improper admission of and reliance on the Section 11A medical report of Dr. Raymond Igou, who died before his deposition testimony could be obtained in these proceedings. (Dec. 2-3) We agree, vacate the decision in part, and recommit the case for further findings."

Impartial Physician's Right to Review

Medical witnesses must be informed, prior to the taking of their testimony by deposition, of their right to read and sign a transcription of their testimony, and of their right to waive such reading and signing. All objections to questions and all motions relevant to testimony must be set forth by counsel with particularity, and with their supporting reasons, and no administrative judge rules on any objection or motion unless such reasons or statements are made.

Scheffler's Case

Although § 11A requires the impartial physician's report to be given prima facie weight, the administrative judge, as the finder of fact, ultimately determines the extent of incapacity. In Scheffler's Case, 419 Mass. 251, 256-61, 643 N.E.2d 1023, 1026-28 (1994), the Supreme Judicial Court held that an administrative judge must also examine an employee's age, education and prior work experience, including transferable skills, in reaching a determination. Practitioners need to argue the Scheffler factors and present the employee's biographical data sheet as well as the issues statement. It is important that the employee's biographical data sheet, or the submission required of the employee at the hearing, be as thorough and complete as possible, as it is the first exhibit submitted into evidence. Any inconsistencies between the testimony and the data sheet can become a pitfall for the employee and a springboard for the insurer. All other evidence, except the physician's testimony, must be presented live. Practitioners should also determine whether or not a vocational expert is necessary given the type of claim filed as well as the employee's age, educational and work background. The testimony of the vocational expert likewise must be given live.