| Date: | 02/18/2020 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 006201-13 |
| Location: | Boston |
- Employee: Virouna Sirasombath Waters Corporation
- Employer: Waters Corporation
- Insurer: Liberty Mutual Insurance Corporation
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.