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O'Brien's Case12/12/1996
Due Process of Law, Hearing. Workers' Compensation Act, Hearing, Impartial physician, Prima facie evidence, Conference procedure.
FRIED, J. The claimant, Barbara O'Brien, asserts that G. L. c. 152, § 11A (2), as appearing in St. 1991, c. 398, § 30, on its face denies a party to a workers' compensation dispute due process of law insofar as it denies the opportunity to offer as of right medical testimony to contradict the report of the impartial medical examiner in the appeal from a conference order. We conclude that § 11A (2) is not unconstitutional on its face.
I
The claimant claimed to have suffered an industrial accident in respect to which the insurer paid weekly incapacity benefits for some six weeks but without prejudice to its right later to contest her claim. When the insurer ceased payments, the claimant filed a claim for their resumption. After a conference, the administrative Judge ordered the resumption of payments. The insurer appealed this conference order and the case came up before the same administrative Judge for hearing pursuant to § 11A (2). At the hearing the claimant was required to prove that she had suffered an injury in the course of her employment and that she was disabled as a result of that injury. The claimant, a private investigator, and a vocational rehabilitation expert testified at the hearing. A month later the impartial medical examiner conducted his examination pursuant to the provisions of § 11A. The administrative Judge filed a decision three months later authorizing the discontinuance of benefits. The claimant appealed to the reviewing board of the Department of Industrial Accidents (reviewing board). The reviewing board found several serious substantive and procedural defects in the Disposition of the administrative Judge and remanded the case for de novo reconsideration before a different administrative Judge. The board went on to state its view that § 11A was unconstitutional on its face in that it did not allow either party in a hearing appealing from a conference order to present as of right its own medical testimony in addition to that of the impartial medical examiner. Recognizing that as an administrative agency it lacked authority to strike down as unlawful or unconstitutional any of the statutes or regulations under which it operates, it stayed the remand in order to allow the claimant to bring to the Appeals Court the question of the facial invalidity of § 11A. The claimant brought the appeal to the Appeals Court in conformity with that court's standing order governing workers' compensation appeals. A single Justice of that court reported the case to a panel of the court, and we brought the case here on our own motion.
II
A
At the outset we note that there is no final judgment in this case, since the reviewing board has remanded it for a de novo redetermination of the claimant's claims, and it is entirely possible that on such redetermination the claimant may prevail or the administrative Judge might exercise his discretion under § 11A to allow her to present additional expert medical testimony. The Attorney General argues that G. L. c. 152, § 12 (2), and G. L. c. 30A, § 14, which govern appeals from orders in workers' compensation cases, only make provision for appeals from final orders, and this is surely not a final order. We agree that interlocutory orders in these cases are not appealable. The order in this case, however, is unusual in that the reviewing board explicitly stayed its decision to allow an appeal for the resolution of a constitutional question which it did not believe it was empowered to decide. In other circumstances where some of the usual aspects of justiciability are
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