Eloise White v. MBTA

Nov 21, 2000

OUTCOME: Appeal to Review Board

. The parties agree that further lay testimony is required at this time. (Joint Ex. 1)(emphasis added.) Notwithstanding the clear language of the last sentence of the stipulation the judge erroneous ... ly notes in the procedural history section of his decision that "the parties drafted a voluntary stipulation [Joint Ex. # 1] that would allow the administrative judge to issue a decision based solely on the previously submitted record, without the need for lay testimony at this time." The judge then reviewed the transcript of the prior proceeding and based his decision on that record. Hence, we recommit the case to the administrative judge for further testimony in accordance with the parties' stipulation. (Dec. 3.) One other issue raised by the employee bears comment. After reviewing the testimony of the employee, the judge indicated that since he did not have the benefit of hearing her testimony in person, he would take her testimony at "face value." (Dec. 13.) He qualified this face value acceptance, however, by noting that "in those areas dealing with physical capability and potential restrictions, I give more weight to the expert medical opinion of the physicians whose reports are in evidence, rather than the employee's self assessment of her medical condition, since she obviously does not have the appropriate medical credentials." (Dec. 13.) We do not think that an employee needs any particular medical training to competently testify about her/his physical restrictions. 6 Whether such testimony is worthy of credit is, of course, for determination by the hearing judge. And if the judge is to resolve the conflict between the employee's testimony as to her physical complaints and the opinions of the medical experts, he must actually see and hear Ms. White testify. It is always error for the judge to decide whether any witness is worthy of belief (which is to say, credible) without "live" testimony. Yates v. ASCAP, 13 Mass. Workers' Comp. Rep. 95, 96-97 (1999); Dicenso v. Winchester Concrete & Carpentry, 7 Mass Workers' Comp Rep. 237, 241 (1993). Nevertheless, we take note that the judge may not have intended to make credibility calls, in the sense of "worthy of belief," as he used language such as "give her testimony little or no weight," "give more weight," or "highly persuasive" to explain his conclusions on the testimony of several witnesses. But because a judge's interpretation of the facts after weighing the evidence often goes hand in hand with a determination of believability, we find it appropriate to return the case to the administrative judge on this second issue as well. See 32A C.J.S. Evidence § 1320 (1996). We vacate the decision and recommit the case for the taking of testimony and further findings in accordance with this decision and the parties' stipulation. 7 So ordered. _____________________ William A. McCarthy Administrative Law Judge _____________________ Sara Holmes Wilson Administrative Law Judge