(1) Unless a late appeal is permitted by the Commissioner as provided by MGL c. 152, § 10A, any appeal from an order of an administrative judge must filed with the Department, on a form prescribed by the Department, not later than 14 calendar days from the filing date of said order.
(a) Where the appointment of an impartial examiner is required, a party has up to ten calendar days following the filing of the appeal to pay the Department the requisite fee. A request for a waiver of the requisite fee based on indigence shall be filed with the Commissioner on a form prescribed by the Department not later than ten calendar days following the filing of the appeal. Where more than one party files an appeal, each shall file timely either the requisite fee or a request for waiver on the prescribed form. The Department shall designate the first check received as the requisite fee required to schedule an examination by an impartial physician. All other checks will be returned.
(b) in a multiple insurer claim, all the individual appeal forms shall accompany a cover sheet approved by the Department which identifies all insurers and states the board number of each claim. One check payable to the Department in the amount of the requisite fee appended to the multiple appeal cover sheet with all individual appeal forms presented in a timely manner shall perfect all appeals;
(c) in any hearing conducted pursuant to MGL. c. 152, § 11, the parties may, consistent with 452 CMR 1.02, at the discretion of the administrative judge, agree in writing or on the record that an impartial physician is not required if such agreement has not been reached at Conference;
(d) in any hearing conducted pursuant to MGL c. 152, § 11 where medical issues will be presented to an impartial physician all medical records will be marked for identification only.
(e) any hearing conducted pursuant to MGL c. 152, § 11A(2) where medical issues have been presented to an impartial physician shall commence no sooner than one week after receipt of the impartial examiner's report by the parties including the Department.
(f) In any hearing in which the insurer raises the applicability of the fourth sentence provisions of MGL c. 152, § 1(7A), governing combination injuries, the insurer must state the grounds for raising such defense on the record or in writing, with an appropriate offer of proof.
(2) Except where events beyond the control of the Department make such scheduling impracticable, the same administrative judge conducting any conference held pursuant to MGL c. 152, § 10A, shall preside over any hearing regarding the matter which is the subject of such conference.
(3) Before the taking of testimony in a hearing before an administrative judge, the insurer shall state clearly the grounds on which the insurer either has declined to pay compensation, or the grounds on which it seeks modification or discontinuance, provided that such statements are based on grounds and factual basis reported by the insurer or based on newly discovered evidence within the provisions of MGL c. 152, §§ 7 and 8 and 452 CMR 1.00. On all other issues, the employee's rights under MGL c. 152 shall be deemed to have been established.
(4) At a hearing, any testimony of parties and witnesses before an administrative judge shall be given under oath or affirmation. Where the administrative judge finds that testimony should be given through any interpreter, the latter shall give oath to interpret faithfully and impartially.
(5) In all hearings before an administrative judge, the testimony of witnesses shall be taken orally or by deposition. Unless otherwise provided by MGL c. 152, or 452 CMR 1.00, the admissibility of evidence and the competency of witnesses to testify at a hearing shall be determined under the rules of evidence applied in the courts of the Commonwealth. The decision of the administrative judge shall be based solely on the evidence introduced at the hearing.
(6) At a hearing pursuant to MGL c. 152, § 11 in which the conference appeal was filed prior to July 1, 1992, or in which the case does not involve a dispute over medical issues as defined in 452 CMR 1.02 , or in which the administrative judge has made a finding under MGL c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, a party may offer as evidence medical reports prepared by physicians engaged by said party, together with a statement of said physician's qualifications. The administrative judge may admit such medical report as if the physician so testified, provided that where specific facts are in controversy, the administrative judge shall, on motion by a party, strike any part of such report that is not based on:
(a) the expert's direct personal knowledge;
(b) evidence already in the record; or
(c) evidence which the parties represent will be presented during the course of the hearing. Pursuant to 452 CMR 1.12(5) , any party may, for the purpose of cross-examination, depose the physician who prepared an admitted medical report. After such cross examination, the parties may conduct further examination pursuant to the rules of evidence applied in courts of the Commonwealth.
(7) The administrative judge shall preside over the hearing and shall control the conduct of parties, attorneys, and witnesses. Each party at a hearing may give a brief opening statement and closing argument, and may submit briefs, motions, requests for findings of facts, and requests for rulings of law, within such time as the administrative judge may prescribe. The administrative judge, at his discretion, may require the filing of briefs in such form and within such time as he may direct.
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