Judge Can’t Conduct Independent Investigation to Discredit Employee and Deny Claim

An administrative law judge (ALJ) at a benefits hearing has the sole authority and responsibility to determine the claimant’s credibility. He or she hears the evidence, including the testimony and cross-examination of witnesses, and makes an impartial decision based on what is presented in court. 

Ordinarily, a Reviewing Board will not disturb the credibility determinations of the hearing judge.

However, if the judge, without notice to the parties, pursues an independent investigation of the employee’s past history of workers’ compensation claims, and then relies on that history to question the employee’s claim, the Reviewing Board has the discretion to step in, overturn the ALJ’s decision, and refer the employee’s claim for reassignment and a new hearing before a different judge.

In the case at Board No. 007733-11, decided in May 2014, the Reviewing Board considered an employee’s appeal from a decision denying and dismissing his claim for benefits.

The employee, 41 years old at the time of the hearing, alleged that he was injured on February 8, 2011, his second day of employment. Following a section 10A conference, the judge ordered the insurer to pay section 35 benefits from February 8, 2011 to December 8, 2011.

Section 35 benefits are for partial disability, providing the employee with 60 percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, with some adjustments depending on the level of the employee’s wages. These may be paid for 260 weeks and may be extended to 520 weeks.

Both parties appealed to a section 11 evidentiary hearing.

The employee testified at the hearing that he was injured when a forklift pushed three empty but very large plastic containers into him. His left foot became wedged under the containers, and he had pain in his lower back, right hip, and right knee.

In his decision denying the claim, the hearing judge stated that the employee claimed that it was his left foot that was caught, but the Reviewing Board noted that neither the section 11A examiner’s report nor the employee’s testimony showed any treatment for a left leg injury. Nor did a CT scan and x-ray taken on the date of the alleged injury reveal any trauma. A subsequent office note from the treating physician raised the question of symptom exaggeration and drug-seeking behavior by the employee. The Reviewing Board had no problem with the hearing judge considering this evidence.

Furthermore, the hearing judge alluded in his decision to the employee’s previous incarcerations, the most recent from October 14, 2005 to February 15, 2008, for breaking and entering and larceny of property. Massachusetts law permits an inference of untruthfulness to be applied to the testimony of convicted felons in certain situations, so the Reviewing Board was not concerned about the hearing judge considering this evidence.

The comments in the judge’s decision that the Reviewing Board found to be problematic were that he believed he “detected an interesting consistency in the amount of time between the date of hire and his date of injury in four cases.” The judge then proceeded to list the employee’s three previous workers’ compensation claims with hiring dates and injury dates:

  1. Hiring date 4/09/90 and injury date 4/20/90;
  2. Hiring date 9/10/03 and injury date 11/25/03;
  3. Hiring date 8/09/04 and injury date 8/17/04.

In this case the hiring date was 2/07/11, and the injury date was 2/08/11.

The hearing judge used this information to discredit the employee’s credibility with respect to his claim of an industrial injury and resulting incapacity.

The Reviewing Board agreed with the employee, who based his appeal on the argument that the hearing judge conducting an independent investigation and using the results to arrive at his decision that the employee was not credible, without notice to the parties and an opportunity to respond, violated his due process rights. The Reviewing Board found that this error by the hearing judge went to a central issue in dispute:  the employee’s credibility.

The Reviewing Board vacated the ALJ’s decision denying the employee’s claim and transferred the case for reassignment to a different ALJ for a new hearing. The reassignment was ordered because the original judge’s assessment of credibility had been compromised by improperly admitted and considered evidence.

For more information about the workers’ compensation process, contact a Boston workers’ compensation attorney from Pulgini & Norton to schedule a free consultation to find out more about what our lawyers can accomplish for you. Contact us via e-mail with a brief description of your situation, or reach us by phone at our Downtown Boston, Hyde Park, or Braintree, Massachusetts office locations.

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