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THE I.M.E.
WHAT'S IN AN ACRONYM?

DUELING DOCTORS

The phrase evokes an image of Marcus Welby and Ben Casey at twenty paces; scalpels or catheters at the ready.

In actuality, the replacement of the opinions of treating and examining physicians with the opinions of a neutral, so-called, "impartial" examining physician was among the most controversial aspects of the sweeping 1991 reform legislation of the Massachusetts workers' compensation statute.1

Lawyers, particularly those representing injured workers, recoiled with initial disbelief and thereafter with constitutional due process induced indignation with the provisions of §11A of the revised statute.

As originally enacted, §11A provided that in any dispute over medical issues which proceeds to a hearing, the employee will be examined by an impartial medical examiner who will also review the parties' submitted medical reports and who will submit a report addressing the medical issues. The statute further provided that the impartial physician's report shall constitute prima facie evidence of the matters contained therein and that no additional medical reports or depositions of any physicians shall be allowed unless there is a finding by the administrative judge that the case is medically complex or that the report is inadequate.

Section 11A also originally provided that the party requesting the hearing pay a filing fee equal to the state average weekly wage (then $515.52, today $749.69) and that the filing fee is applied only to claimants represented by counsel; pro se litigants were exempt from the fee. There was no provision to waive the fee in the case of claimant indigency.

Constitutional due process and equal protection issues seemed to literally leap from the text of the new statute .

The Massachusetts Supreme Judicial Court in four decisions (1993, 1994, 1995 and 1996) fended off the constitutional challenges.

In the first of those decisions Jean Murphy v. Commissioner of the Department of Industrial Accidents2, (Murphy I) the attack on §11A focused on the equal protection issue i.e. represented claimants pay the fee, the unrepresented do not; and the fact that the amount of the fee exceeded the actual cost of the §11A examination.

The strategy was to focus on an obvious constitutional weakness of §11A to persuade the Supreme Judicial Court to declare all of §11A unconstitutional. The strategy did not work.

The Court did find that these two provisions were unconstitutional, but chose to remand the case back to the Superior Court. The judge in the Superior Court upheld that statute by citing "The Legislature's strong commitment to the impartial concept" and in essence rewrote §11A eliminating the distinction between represented and pro se litigants. The filing fee was rolled back to $350.00 (where it remains today), the actual cost of the §11A examination. Section 11A in all other aspects survived.

The stage was set for Murphy II.3 The strategy in this appeal was to challenge the ability of the Superior Court to "rewrite" an unconstitutional statute so as to make it constitutional. It was argued that this was, if not a job for Superman, a job nonetheless for the legislature.

The Supreme Judicial Court disagreed citing the legislative history in enacting §11A. The Court held that the elimination of the tainted portions of §11A did not cause the whole section to fall stating, "we believe the Legislature would have intended the remainder of the section to be valid." Section 11A was rewritten, not by the legislature, but by the courts.

The constitutionality of §11A was challenged again on a peripheral issue in Neff v. Commissioner of the Department of Industrial Accidents4, decided in 1995.

In Neff the focus was the lack of an indigency waiver in §11A. Again, the Supreme Judicial Court deferred to the legislative intent in enacting §11A and interpreted the statute as conferring on the commissioner the authority to grant waivers of the filing fee to indigent claimants.

Nevertheless, §11A remained strongly within the crosshairs of the claimant bar. Enter Barbara O'Brien's Case5.

In O'Brien the focus was on the prima facie status of the §11A report together with the exclusion of additional medical testimony. This facial constitutional challenge went to the very core of §11A instead of the fringes of the section (i.e. Murphy I, Murphy II, and Neff). Again, failure of due process was argued by the appellant (and a formidable array of amicus curiae). Implicit in the definition of prima facie status was the opportunity to rebut such evidence. Prohibiting the introduction of additional medical evidence prevented a party from rebutting the prima facie opinion of the §11A physician. Section 11A became, in essence, a legal Catch 22.

Although the Supreme Judicial Court upheld the constitutionality of §11A, some cautionary language in the decision has muted the statutory exclusion of additional medical evidence. The Court stated, "In any case where that opportunity is insufficient [cross-examining the impartial doctor], the statutory scheme may work a deprivation of due process . . ." This holding is frequently cited by litigants in support of their motions for allowance of additional medical testimony.

As Murphy I , Murphy II, Neff and O'Brien went through the appellate court system, §11A practice continued to evolve at the Department of Industrial Accidents.

Workers' Compensation practice in Massachusetts had dealt with the concept of impartial examinations before albeit in a much more limited sense. Prior to 1992, the use of an impartial physician was permissive in nature and was left to the discretion of the judge hearing the case. Both parties could offer rebuttal medical evidence.

In 1985 a discretionary §11A was added to the statue giving an administrative judge the ability to appoint an impartial physician in mental or emotional disability cases. Despite this provision, the utilization of this provision was rarely invoked.

The 1992 amendment to §11A differed in making the report mandatory, giving it prima facie weight and excluding other medical evidence.

It soon became clear that an impartial examination would not be feasible in all claims involving a dispute over medical issues.

Accordingly by regulation6, an impartial physician would not be required in the following instances:

  1. §7A prima facie death cases i.e. where an employee is killed or found dead in the workplace.
  2. §31 death of employee
  3. cases where the dispute over entitlement to a prior period of weekly benefits.


In addition to these three categories, the parties had the ability to "opt out" of the impartial process by mutual agreement in the following circumstances7:

  1. where the parties agree upon the partial nature and duration of disability as well as the causal relationship between the disability and employment.
  2. Where initial liability has not been established.


These provisions eliminate the need for a §11A impartial in a small number of cases. As far as the parties "opting out" of the process, rarely do the claimant and insurer agree. Nevertheless the regulation has been a welcome addition to the process insofar as the number of impartial examinations that are avoided.

The Reviewing Board of the Department of Industrial Accidents also has been busy dealing with a multitude of issues surrounding §11A.

In 1998 Administrative Law Judge Susan A. Maze-Rothstein authored a most helpful and informative article entitled An Advocate's Guide to Case Law on G.L. c. 152, §11A Practice. In it she analyzes and discusses the cases that have reached the Reviewing Board between 1994 and 1997. In her review, no less than 92 cases resulted in a Reviewing Board decision regarding one aspect of §11A or another. Many of these decisions resulted in a reversal of a hearing decision or a remand for a new hearing or decision.

Cases decided by the Reviewing Board have focused, among other things, on the alleged bias of the §11A examiner; what constitutes medical complexity or report inadequacy; the content of allowed additional medical evidence, inadequacy as a matter of law; complexity as a matter of law; when a judge may or should order additional medical evidence sua sponte; when prima facie weight is overcome; lack of §11A expertise and how to deal with "gap" periods (periods of disability prior to date of §11A examination).

Since 1997 dozens more cases have gone to hearing decisions, appeal and Reviewing Board action.

Section 11A has also impacted the attorneys who practice before the Department of Industrial Accidents. Concerns of the claimant bar (of which the author is a member) have already been discussed insofar as constitutional and cost issues are concerned. Time and experience have also taught us that §11A practice has become a niche or sub-specialty in the handling of compensation claims in general. For example, when to try to opt out; what specialty of impartial should be selected; when to propose written hypothetical questions; when and how to move to add additional medical evidence are among the areas that only experience can serve to guide the practitioner. Knowledge of the individual judges (some are more liberal with §11A motions than others) as well as knowledge of the small cadre of impartial physicians are additional considerations in each case.

From the insurer's perspective, having an impartial doctor render the exclusive opinion on disability and/or causation also becomes the equivalent of a crap shoot. However, since many insurer's IME physicians are familiar visitors to the process with their own credibility baggage, §11A exams seem to be favored by insurers more than by claimants.

Many practitioners and observers have found that certain medical specialties, psychiatry, for example tend to produce reports more favorable to the claimant than the insurer/employer.

Workers' Compensation reform intended to reduce the cost of claims and the cost in premiums to Massachusetts employers. In this regard, the 1991 legislation was overwhelmingly successful. The adoption of a mandatory impartial medical examination was enacted to simplify and expedite the dispute resolution process. The reverse has proven to be true. Forget for the moment the hundreds of appealed, reversed or remanded cases because of §11A considerations, contrast the litigation process without an impartial examination and with an impartial.

Without an impartial exam, the claim went from a §10 conference to a hearing (usually in 2 -3 months). After the lay testimony, the parties would be given 30- 45 days for medical depositions. A decision would then issue.

With an impartial exam, the claim proceeds from a §10 conference to a §11A impartial exam (usually in 2-3 months) then the parties wait for the report (usually 1 month or less), then the case is assigned for hearing (2 - 3 months). At hearing (or before) §11A motions are filed and argued. Often the §11A physician deposition must be scheduled and held (a month or so later). If additional evidence is then allowed, another 30- 45 days is needed before the record closes. The dispute resolution process is lengthened by many months. In many cases, the parties are back to dueling doctors in addition to the impartial physician. This is the state of compensation practice in Massachusetts today; any practitioner will confirm this.

CONCLUSION

In a simplified idealistic world, it would seem that if an employee's doctor has one opinion and the insurer's doctor has another, than having a neutral third doctor look at the records and perform an examination to render the true and correct opinion, would seem to make sense from a medical as well as economic standpoint.

However, experience has demonstrated that only in simple cases has the §11A process achieved its desired objective, in most others it serves to complicate, obfuscate and lengthen the process. Other jurisdictions should look closely at the Massachusetts' experience before embarking on a similar journey.

ENDNOTES

  1. On December 23, 1991, Governor William Weld signed a Workers' Compensation Reform Act entitled, "AN ACT RELATIVE TO FAIR AND EFFECTIVE COMPENSATION OF INJURED WORKERS", Chapter 398 of the Acts of 1991 which reformed Mass Gen. Law c. 152. Section 11A is the section dealing with impartial physicians.
  2. Murphy v. Commissioner of the Department of Industrial Accidents, 415 Mass 218, 612 N.E. 2d 1149 (1993);
  3. Murphy v. Commissioner of the Department of Industrial Accidents, 418 Mass 165, 635 N.E. 2d 1180 (1994);
  4. Neff v. Commissioner of the Department of Industrial Accidents, 421 Mass 70, 653 N.E. 2d 556 (1995);
  5. O'Brien's Case, 424 Mass 16, 673 N.E. 2d 567 (1996)
  6. 452 CMR 1.10(5)
  7. 452 CMR 1.10(6)

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