Workers’ compensation – Impartial physician – Deposition

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Where an employee was awarded permanent and total incapacity benefits, a recommittal must be ordered because the administrative judge did not review or acknowledge the deposition testimony of the impartial physician and inaccurately stated that the deposition did not occur.

“The self-insurer appeals from the administrative judge’s decision awarding the employee §34A permanent and total incapacity benefits. On appeal, the self-insurer raises several arguments, including that the administrative judge erred by failing to consider the deposition testimony of the impartial physician in his decision. We agree that the administrative judge did not review or acknowledge the deposition testimony and inaccurately stated that the deposition did not occur. We recommit the case for the administrative judge to consider all evidence, including the deposition transcript of the impartial physician, as outlined in this opinion. …

“… George P. Whitelaw, M.D., the §11A impartial physician, examined the employee on September 28, 2023.  …

“… Both the employee and the self-insurer agree that the administrative judge incorrectly stated in the decision that Dr. Whitelaw was not deposed. …

“The self-insurer argues that the administrative judge’s failure to consider Dr. Whitelaw’s deposition requires the decision to be vacated, whereas the employee argues that the administrative judge’s error in stating that Dr. Whitelaw was not deposed is harmless. … It is axiomatic that the judge must weigh and consider all properly admitted evidence. … Here, the administrative judge not only failed to acknowledge the deposition of Dr. Whitelaw, but specifically and inaccurately stated that the deposition did not take place. … Complicating matters further, both the employee and self-insurer include multiple quotes and references to Dr. Whitelaw’s deposition testimony in their closing briefs to the administrative judge. … Failure to consider this portion of the medical evidence could adversely impact on substantial rights, foreclosing the parties from the opportunity to fully present the medical portion of their respective positions. …

“Accordingly, we vacate the hearing decision and recommit the case the matter for further findings of facts consistent with this opinion.”

Re: Donovan, Francis (Lawyers Weekly No. 25-012-25) (4 pages) (O’Leary, J.) Robert T. Naumes Jr. for the employee; Paul Brien for the self-insurer (Board No. 037665-20) (Dec. 31, 2025).

Click here to read the full text of the opinion.