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In re Viveiros11/28/2001
Suffolk.
September 20, 2001.
Workers' Compensation Act, Impartial medical examiner. Evidence, Medical report, Videotape.
Appeal from a decision of the Industrial Accident Reviewing Board.
The main issue to be explored in this worker's compensation case centers on the employee's claim that there were shortcomings in the report of an independent medical examiner (IME) prepared pursuant to G.áL. c.á152, á11A. We hold that the burden was upon the employee, not the administrative judge sua sponte, to move to supplement the medical record.
Background.
The employee, Mary Rose Viveiros, appeals from a decision of the reviewing board of the Department of Industrial Accidents, which affirmed the decision of an administrative judge denying additional benefits from February 8, 1996, forward. She argues that (1) the report of the IME was inadequate to support the decision, and (2) a videotape purporting to depict her working conditions was improperly admitted in evidence. We affirm.
Facts.
Viveiros is a former employee of A & A Manufacturing Co., Inc., where she worked as a garment examiner. As an examiner, she inspected the work of fourteen machine operators who installed pockets and zippers on garments. On October 16, 1995, she injured her lower back when she bent down to pick up a bundle of fabric. After reporting the incident to her supervisor, she left work to seek medical treatment at a local hospital, where she was given medication and released. She returned to work the next day and was assigned to a lighter job, which she left after two hours, still complaining of pain. She again reported this to her supervisor and sought medical treatment. She has not returned to work since.
The insurer, A.I.M. Mutual Insurance Company, denied initial liability and payment of benefits. Viveiros filed a claim for benefits pursuant to G.áL. c.á152, á13, 30, and 34. On February 28, 1996, following a conference held pursuant to
G. L. c. 152, 10A, the administrative judge ordered the payment of medical and temporary total incapacity benefits pursuant to G.áL. c.á152, á30 and 34, for the period of October 17, 1995, to February 8, 1996. While both parties appealed that decision, the insurer withdrew its appeal on March 15, 1996.
Pursuant to G. L. c. 152, á11A(2), Dr. Medhat Kader was named as an IME to examine Viveiros, which he did on May 1, 1996. Dr. Kader reviewed the reports of Viveiros's previous treating physicians. He found a causal relationship between the incident and the back pain, but concluded that at the time of his examination, Viveiros was not disabled and was capable of performing her previous job. His diagnosis at the time of the examination was a "low back sprain, completely subsided with no residuals."
Viveiros argues on appeal that the report of the IME was inadequate in that it "failed to address the disability and extent of it for the period prior to the date of the examination."
Supplementation of the Medical Record.
Issues of fault are largely irrelevant in cases in which an employee is injured in the workplace. Of significance and in frequent dispute are "the fact and the extent of injury." O'Brien's Case, 424 Mass. 16, 20 (1996). To avoid what had been categorized as the battle of dueling doctors, G. L. c. 152 was amended to provide for an examination by an agreed upon or appointed impartial medical examiner. After the physical examination, the doctor is required to render a report, which must address certain issues. That report is entered as an exhibit. " o additional medical reports or depositions of any physicians s
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