Discovery requests
On or after filing, a claimant may serve on any other party a request to be permitted to enter a specific area of the employer's premises for the purpose of
- Measuring,
- Surveying,
- Photographing,
- Testing,
- Sampling, or
- Inspecting
any designated:
- Object,
- Record, or
- Substance.
The claimant, or complainant, may request the production of the employee's medical records and record of wages earned since the alleged injury. These discovery requests must describe each item or category sought with reasonable accuracy, and be accompanied by a statement providing the relevance of the requested information.
The party on whom the request is served must respond in writing within 5 calendar days after getting the request.
Discovery motions
On written motion of an appropriate party, the administrative judge to whom a case is assigned can compel discovery, and is also empowered to issue subpoenas to compel a witness who is not a party to attend the proceedings. Failure to comply can result in an assessment of costs and penalties. On written motion of an appropriate party, the administrative judge to whom a case is assigned may issue an order requiring compliance with any request for discovery, including any request submitted under 452 CMR 1.12(1) or (2). Failure to comply with said order without good cause may result in assessment of costs or penalties pursuant to MGL c. 152, § 14. If the administrative judge's order is taken to Superior Court, and entered as an order of that court, contempt sanctions for non-compliance may be obtained.
Medical evidence
Right to Depose Impartial Physician
Either party has the right to ask the impartial medical examiner to be deposed for purposes of cross-examination. No additional medical reports or depositions of any physicians are allowed by law to any party; provided, however, the administrative judge may order sua sponte or on a motion by a party if the medical issues are too complex.
Deposition Fee for Impartial Physicians
The fee for the provision of a deposition by any impartial medical examiner is $750 for up to the first 2 hours, and $100 additional for the 3rd hour. This fee is paid by the deposing party directly to the physician.
If the decision of the administrative judge is in favor of the employee, the cost of the deposition will be added to the amount awarded to the injured worker and be paid by the insurer.
Conference Appeals
An administrative judge approves the testimony by deposition of the impartial physician. The impartial physician's testimony may not be taken prior to the 1st scheduled MGL c. 152, § 11 or § 11A(2) hearing date, unless authorized by the administrative judge.
Discretionary Discovery
Pre-Hearing Impartial
The administrative judge's approval of a pre-hearing impartial physician deposition must be in writing.
Medical Testimony
An administrative judge may approve 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 7 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 3 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 60 calendar days from the close of testimony. A party may motion the administrative judge for an extension for cause for no more than 30 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
When an impartial medical examiner who has submitted their report is unavailable, or makes themself 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 the ruling, the administrative judge allows a reasonable extension of time for submission of additional medical evidence, not to exceed 45 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 § 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. No administrative judge rules on any objection or motion unless all objections to questions and all motions relevant to testimony are submitted by counsel with accuracy, and their supporting reasons.
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 Form 160 - 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 1st exhibit submitted into evidence. Any inconsistencies between the testimony and the data sheet can become a pitfall for the injured worker 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.
| Date published: | August 10, 2018 |
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