ROBERT COGGIN vs. MASSACHUSETTS PAROLE BOARD.

WARNER, C.J. The Massachusetts Parole Board (employer), appeals from a decision of a single justice of this court affirming an award of permanent and total incapacity benefits under G. L. c. 152, s. 34, to Robert Coggin. See G. L. c. 152, s. 12(2). [Note 1]

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Coggin had worked for the parole board since September, 1966, first as a parole officer and later as a supervisor of nine officers and 1,000 parolees. He suffered a heart attack on May 12, 1986, and was temporarily out of work. On September 4, 1987, shortly after returning to work, Coggin suffered another episode of chest pain. He has not worked since that date.

Coggin received temporary total incapacity benefits under G. L. c. 152, s. 34, for the statutory maximum of 260 weeks and subsequently filed a claim for permanent and total benefits under G. L. c. 152, s. 34A. Following a conference before an administrative judge of the Department of Industrial Accidents (DIA), Coggin was awarded permanent and total incapacity benefits. See G. L. c. 152, s. 10A. [Note 2] The employer appealed the award, and a de novo hearing was held pursuant to s. 11 of c. 152. [Note 3] The administrative judge subsequently issued a hearing decision, affirming his earlier award. The employer appealed to the reviewing board of the DIA, which summarily affirmed the decision of the administrative judge. A single justice of this court entered a judgment affirming the decision of the board. We affirm.

Prior to his medical hearing, Coggin was examined by an impartial medical examiner (IME) pursuant to G. L. c. 152, s. 11A(2), which provides for the appointment of an impartial physician when a workers' compensation claim involves a dispute over medical issues. Pursuant to the statute, the physician examines the employee and submits a report on the extent and permanence of his incapacity. Scheffler's Case, 419 Mass. 251, 257 (1994). Here, the IME concluded, in part, that Coggin was not permanently and totally disabled from employment. Coggin filed a motion to submit additional medical testimony pursuant to s. 11A(2), arguing that the report

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was "inadequate" because the IME had also expressed the opinion that his heart condition was not work related, an issue that was not contested by the employer. Coggin maintained that the IME's obvious misunderstanding of the proper scope of his examination and subsequent conclusion that Coggin's heart condition was not work related, were indicative of the over-all inadequacy of the report, and that the admission of additional medical evidence was therefore warranted under the statute. G. L. c. 152, s. 11A(2). [Note 4]

The administrative judge granted Coggin's motion, and Charles Haffajee, Coggin's treating physician was deposed. Doctor Haffajee testified that Coggin was, indeed, "disabled for practical purposes for the rest of his functional life." The administrative judge subsequently issued a hearing decision, "adopting the persuasive opinions of [Dr. Haffajee] relative to impairment and causal relationship" and awarding Coggin total and permanent incapacity benefits.

The employer first argues that the administrative judge improperly admitted the testimony of Dr. Haffajee pursuant to G. L. c. 152, s. 11A, because the report of the impartial physician was adequate, and the medical issues under consideration were not complex. [Note 5] We begin by noting that "[t]he interpretation of a statute by the agency charged with

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primary responsibility for administering it is entitled to substantial deference." Gateley's Case, 415 Mass. 397, 399 (1993). The party appealing an administrative decision bears the burden of demonstrating the decision's invalidity. Merisme v. Board of Appeals on Motor Vehicle Liab. Policies & Bonds, 27 Mass. App. Ct. 470, 474 (1989). Under G. L. c. 152, s. 12(2), a decision of the DIA reviewing board is scrutinized in accordance with the standards expressed in G. L. c. 30A, s. 14(7)(a)-(d), (f), and (g). [Note 6] Scheffler's Case, 419 Mass. at 258. Moreover, where, as here, the reviewing board summarily affirms and adopts without change the findings and decision of an administrative judge, a reviewing court "must look to that decision to determine whether the action of the board [was] correct." Nowak's Case, 2 Mass. App. Ct. 498, 499 (1974). See Haley's Case, 356 Mass. 678, 679-680 (1970); McElroy's Case, 397 Mass. 743, 745 (1986).

We review the single justice's order "in the same manner as if the single justice were a lower court." Appeals Court Rule 2:04 (1990). Because this court is conducting "an analysis of the same agency record . . . there is no reason why the view of the [single justice] should be given any special weight." Southern Worcester County Regional Vocational Sch.

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Dist. v. Labor Relations Commn., 377 Mass. 897, 903 (1979). The question we must consider, therefore, is whether the administrative judge abused his discretion, committed an error of law or "otherwise [failed] the test [set out in] G. L. c. 152, s. 12(2)," in admitting the deposition of Coggin's treating physician pursuant to G. L. c. 152, s. 11A. Scheffler's Case, supra at 261.

In addition to requiring that an IME be appointed in certain workers' compensation cases, G. L. c. 152, s. 11A, also provides that the administrative judge may "authorize the submission of additional medical testimony when such judge finds that said testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial examiner." G. L. c. 152, s. 11A(2), as appearing in St. 1991, c. 398, s. 30. Here, the administrative judge concluded that additional medical evidence was warranted due to the inadequacy of the IME's report. Specifically, the administrative judge concluded that "[g]iven the complexity of the issues involved and the standards applied, the subject report for purposes of section 11A of the Act is found inadequate."

While the reasons underlying the administrative judge's finding of inadequacy may not be entirely clear from reading the endorsement, our review of the record leads us to conclude that there was no abuse of discretion. [Note 7] The single justice adequately dealt with the employer's arguments to the contrary and there is no reason for us to repeat his analysis here. We note briefly, however, that we agree with the single justice's conclusion that the administrative judge properly determined that the IME's report was inadequate due to the possibility that it was tainted by his misunderstanding of the

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proper scope and purpose of his examination. See Scheffler's Case, 419 Mass. at 259 (IME's opinion not afforded status of prima facie evidence where it was based on inaccurate assumptions). We add that the importance of affording a workers' compensation claimant the opportunity fairly to present the medical issues he considers favorable to his claim, see O'Brien's Case, 424 Mass. 16, 22 (1996), further supports our conclusion that the administrative judge acted properly in admitting the deposition testimony of Dr. Haffajee. "[I]f the judge performs [his] function correctly [under s. 11A(2)] the parties will be granted the [opportunity to present additional medical testimony] where this . . . testimony would serve some legitimate function." Ibid.

The employer next argues that the administrative judge erroneously accepted Dr. Haffajee's conclusion that Coggin was permanently and totally disabled, completely ignoring the IME's opinion. We disagree.

General Laws c. 152, s. 11A, provides that the impartial physician's report "shall constitute prima facie evidence of the matters contained therein." "Prima facie evidence, in the absence of contradictory evidence, requires a finding that the evidence is true." Anderson's Case, 373 Mass. 813, 817 (1977). See Thomes v. Meyer Store, Inc., 268 Mass. 587, 588 (1929). Nothing in s. 11A, however, requires the administrative judge to adopt the conclusions of the report or precludes him from considering additional medical evidence once it becomes part of the record. Indeed, "prima facie evidence may be met and overcome by evidence sufficient to warrant a contrary conclusion." Anderson's Case, supra at 817. Once properly admitted, the probative value of medical testimony is to be weighed by the fact finder, in this case, the administrative judge. Robinson v. Contributory Retirement Appeal Bd., 20 Mass. App. Ct. 634, 639 (1985). Barbieri v. Johnson Equip., 8 Mass. Workers' Comp. Rep. 90, 93 (1994). Thus, it is "within the province of the [administrative judge] to accept the medical testimony of one expert and to discount that of another." Fitzgibbons's Case, 374 Mass. 633, 636 (1978).

The record in this case included not only the IME report and the deposition testimony of Dr. Haffajee, but the deposition of Coggin's own psychologist, a report submitted by a psychiatrist who examined Coggin on behalf of the employer, and Coggin's own testimony regarding the limitations on his

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daily activities. Moreover, the administrative judge also considered Coggin's age (he was 60 at the time of the de novo hearing before the administrative judge), educational background, and prior employment history in reaching his decision. There was no abuse of discretion. Moreover, the reviewing board's decision, which was based on the administrative judge's report, was not arbitrary or capricious, based on an error of law, or otherwise not in accordance with law. See G. L. c. 30A, s. 14. Accordingly, the judgment is affirmed.

So ordered.