New England Biz Law Update
Resolving a long-running point of confusion within the Massachusetts Department of Industrial Accidents, a three-judge review panel has ruled that employees seeking workers’ compensation are entitled to copies of medical reports generated by insurance company doctors.
After an employee injured his back at work, he received workers’ comp benefits until the employer’s insurance administrator appealed to a judge at the DIA. Before that hearing, the administrator had the employee examined by a doctor but failed to turn over the medical report and did not use it at trial. When the judge denied the employee’s benefits, his lawyer, Edmund P. Hurley, appealed, arguing he should have been allowed to see the report and use it as a foundation to cross-examine a second doctor.
The DIA panel agreed, saying that “the injured worker’s right to receive a copy of a report pertaining to a medical examination of his person is consistent with the rights of workers, and patients, to request and receive medical reports under various provisions of the general laws.”
While the medical report itself may not be entered as evidence, the panel concluded that “the opinions contained in the reports of other physicians are proper fodder for cross-examination, which process safeguards the parties’ right to challenge the opinion of the impartial medical examiner” hired by the DIA.
The 10-page decision is In Re: Higgins, Richard.
A definitive answer
Lawyers who handle workers’ compensation cases say the ruling brings much needed clarity to a question that has arisen repeatedly. Insurance companies often have a worker examined by a doctor and then never produce the subsequent medical report.
“Some judges have said that the employee’s counsel is entitled to a copy of the insurance medical examiner’s report, some have ruled the other way,” Somerset, Mass., lawyer Steven P. Sabra said. “So [this decision] answers the question pretty definitively that employee’s counsel is entitled to get a copy of that report.”
Sabra said a client of his in a recent case had suffered a psychiatric injury, and the insurer sent her for an evaluation but refused to produce the report. Two months later, the company sent her to another doctor.
“That got me suspicious, so I filed a motion to compel the company to produce the report. That judge allowed it, and what it showed was extremely favorable to my client,” Sabra said. “So I think this decision is going to be good for employees, and it’s the way that it should be.”
If a medical report is not produced, the court can infer that the conclusions were favorable to the worker, but the employee’s counsel is still deprived of a tool that might bolster the case, said Hurley, an attorney at The Law Offices of Blaine J. Defreitas & Associates in Maynard, Mass.
“It might be useful,” Hurley said of the report. “Conceivably, it could also be totally adverse to our client. We are in the dark, but hopefully it will bring up some issues for cross-examining” the DIA’s doctor.
Salem, Mass., lawyer Alan S. Pierce said inconsistent rulings in the past had “been a thorn in my side for a number of years.” Not only did it deny plaintiffs possibly helpful information, it allowed insurance companies to go shopping for a doctor who would tell it what it wanted to hear, he said.
Since 1992, the DIA has been allowed to order impartial medical examinations of those seeking workers’ compensation. The results of the exams are given heavy sway, Pierce said, which is made even weightier because plaintiffs are not allowed to introduce medical evidence of their own unless the judge deems the medical condition to be sufficiently complex.
“There have always been due-process concerns because the doctor essentially makes a report that is prima facie and, in many cases, is the only evidence,” Pierce said. “With Higgins, if you get a report, it allows you to get a competent opinion whether the party is disabled, and you can at least [use it to] cross-examine the impartial doctor. I like to think that the more medical evidence a judge has, the better the decision will be,” he added.
But Thomas P. O’Reilly of Curtin, Murphy & O’Reilly in Boston said he doubts the decision will have a profound impact on future cases. As an attorney who represents insurance companies, he said he has only withheld a medical report from a plaintiff in one or two cases during more than 30 years of practice.
“If I don’t produce the report, the judge is going to assume the worst,” O’Reilly said. “So, to my mind, this is much ado about nothing. … I really can’t say that it is wrongly decided, but I don’t think it is going to have a big impact on the way we practice, at least at this firm.”
Paul M. Moretti, managing partner at Curtin, Murphy & O’Reilly, said he believes the judges overreached by saying the medical report could be used to cross-examine a witness. Unlike the trial courts, the Department of Industrial Accidents is governed by regulations that prohibit a medical report from being introduced into evidence unless it is being used by the party that ordered it.
“Allowing an opposing party to use it is a backdoor way to get this doctor’s opinion before the judge,” Moretti said. “I understand that, in civil cases, it would be discoverable and you could use it for cross-examination, and I think the review board is saying, ‘Why is the Department of Industrial Accidents any different?’ Well, the reason it is different is because they have a regulation that the trial courts don’t have.”
Moretti said he would advise his insurance company clients not to request a report and instead get a verbal assessment, which is not discoverable.
Holly B. Anderson of Cunningham, Machanic, Cetlin, Johnson & Harney in Natick, Mass., represented the defendant employer. She did not return a call seeking comment.
Injured on the job?
Higgins was a custodian in the Maynard School Department who suffered from a pre-existing degenerative disc disease and spondylolisthesis, a condition in which one vertebra has slipped over another.
On July 14, 2004, he injured his back at work while moving a heavy barrel, Hurley said, and began receiving workers’ compensation benefits. The administrator for the town’s self-insured plan, the Massachusetts Education and Government Association, or MEGA, appealed.
Higgins was evaluated by a doctor on May 2, 2005, at MEGA’s request. On July 8, Hurley filed a motion to compel MEGA to provide him with a copy of the doctor’s report. Administrative Judge Richard J. Heffernan never acted on the motion.
On July 12, 2005, Higgins received an impartial medical exam pursuant to G.L.c. §11A. That doctor concluded that Higgins had suffered a work-related aggravation of his pre-existing conditions, but the condition had since been resolved. Based on that information, Heffernan terminated Higgins’ benefits.
Hurley appealed, arguing that he should have been provided a copy of the insurance company’s medical report that he in turn could have used to cross-examine the department’s doctor.
Administrative Judge Bernard W. Fabricant, writing for the three-judge reviewing board, agreed.
Though the insurer argued that the law required it only to turn over the report if it planned to introduce it as evidence, Fabricant disagreed, saying the statute “contains no such limitation.”
MEGA also claimed that G.L.c. 152, §30A does not require the insurer to provide a copy of the medical report if the examining physician does not think the injury was work related.
“We reject [this] argument as groundless,” Fabricant wrote. “Nothing in §30A, which focuses on an examining physician’s duty to furnish reports, contradicts the employee’s right, as plainly set forth in §20, to discover them.”
Moreover, he added, “it simply makes no sense that such discovery hinges upon the causal relationship opinion contained in the report. If this were the case, there would be no way of enforcing the sanction for failure to comply with reporting requirements, as the department would not have the information available to make a determination as to whether an injury ‘appears to be compensable.’”
Having ruled that the plaintiff was entitled to the report, the court said that plaintiff’s counsel was allowed to use it to cross-examine a witness.
While a judge could not make findings based on the report, Fabricant wrote, “the opinions contained in the reports of other physicians are proper fodder for cross-examination, which process safeguards the parties’ right to challenge the opinion of the impartial medical examiner.”
