Code of Massachusetts Regulations › 452 CMR - DEPARTMENT OF INDUSTRIAL ACCIDENTS › Title 452 CMR 1.00 - Adjudicatory Rules of the Industrial Accident Board › Section 1.12 - Discovery and Depositions

Current through Register 1525, July 5, 2024
(1) On or after the
			 filing of any claim, the claimant may serve on any other party a request to be
			 permitted to enter upon a designated area or areas of the employer's premises
			 for the purposes of measuring, surveying, photographing, testing, sampling, or
			 inspecting any designated object, record, or substance thereon.
(2) On or after the filing of any claim or
			 complaint, any party may serve on any other party, employer or medical provider
			 rendering treatment to the claimant, a request to produce, and permit the party
			 making the request to inspect and copy, any medical notes, treatment reports
			 and employment records to include but not be limited to record of wages earned
			 subsequent to the alleged injury.
(3) Any request submitted under 452 CMR
			 1.12(1) or (2) shall set forth the item or category of items to be inspected,
			 and describe each item or category with reasonable particularity. Such request
			 shall be accompanied by a statement providing the relevance of the requested
			 information to the instant case. The request shall specify a reasonable time,
			 place, and manner of making the inspection and performing the related acts. The
			 party on whom the request is served shall respond in writing within 20 calendar
			 days after service of the request. The response shall state, with respect to
			 each item or category, that inspection and related activities will be permitted
			 as requested, unless the request is objected to, in which event the reasons for
			 objection shall be stated.
(4) On
			 written motion of a party, the administrative judge to whom the case has been
			 assigned may require, by the issuance of any order, compliance with any request
			 for discovery, including any request submitted under 452 CMR 1.12(1) or (2).
			 Failure to comply with said order without good cause may result in assessment
			 of costs or penalties pursuant to M.G.L. c. 152, § 14.
Any motion relating to discovery must be served upon counsel
				for the opposing party and the administrative judge. The party receiving the
				motion shall, within ten days of receipt of the motion, comply with the
				discovery sought by motion or provide a written response opposing the motion
				with specificity to the other party and the administrative judge. A hearing on
				the motion may be required at the discretion of the administrative judge. The
				administrative judge may rule upon the motion without hearing
(5) At a hearing in which the case does not
			 involve a dispute over medical issues as defined in
			 452 CMR 1.02, or in
			 which the administrative judge has made a finding under M.G.L. c. 152, §
			 11A(2) that additional testimony is required due to the complexity of the
			 medical issues involved or the inadequacy of the report submitted by the
			 impartial medical examiner, an administrative judge may authorize the taking of
			 testimony of medical witnesses by deposition. An administrative judge shall
			 authorize the testimony by deposition of the impartial physician. The impartial
			 physician's testimony may not be taken prior to the first scheduled M.G.L. c.
			 152, § 11 or § 11A(2) hearing date as applicable unless authorized by
			 the administrative judge. The administrative judge's authorization of a
			 pre-hearing impartial physician deposition must be in writing. In addition to
			 the impartial physician's deposition, an administrative judge may authorize the
			 submission of medical testimony by deposition on motion by a party or on the
			 judge's own initiative. The required finding on medical complexity and/or
			 inadequacy of the impartial physician's report may be made by the
			 administrative judge prior to the first scheduled M.G.L. c. 152, § 11 or
			 § 11A(2) hearing date as applicable. After receipt of the impartial
			 physician's report, upon written request of a party, the administrative judge
			 may authorize such additional medical testimony due to inadequacy of the report
			 or the complexity of the medical issues involved.
(a) The administrative judge's authorization
			 of additional medical testimony must be in the form of a written finding that
			 such testimony is required due to the complexity of the medical issues involved
			 or the inadequacy of the report of the impartial physician. Additional medical
			 testimony may only be authorized pursuant to
			 452 CMR 1.00.
(b) Notice of the date, time, and place of
			 the deposition shall be provided to all opposing parties in writing with a
			 certificate of service not less than seven calendar days before the deposition.
			 The deposition shall be taken for use as medical evidence only and shall be
			 admissible, in whole or in part, in proceedings before an administrative judge.
			 No deposition of an impartial physician may exceed three hours without the
			 agreement of all parties, including the physician, or unless authorized in
			 writing by the administrative judge on a motion by a party. All depositions
			 shall be submitted at the time requested by the administrative judge but no
			 more than 60 calendar days from the close of lay testimony, provided that a
			 party may motion the administrative judge for an extension for cause for no
			 more than 30 calendar days. Any extension shall be authorized in writing by the
			 administrative judge on motion by a party.
(c) Where an impartial medical examiner who
			 has submitted his or her report is rendered unavailable, or makes him or
			 herself unavailable for deposition, either party may file a motion seeking a
			 ruling that the impartial medical examiner is unavailable. Unless the parties
			 otherwise agree, a ruling of unavailability resulting from reasons other than
			 those stated in M.G.L. c. 152, § 20B, shall result in the striking from
			 the record evidence of the impartial medical examiner's report, and a required
			 ruling of inadequacy authorizing the parties to submit additional medical
			 testimony. Upon such a ruling, the administrative judge shall allow a
			 reasonable extension of time for submission of such additional medical
			 evidence, not to exceed 45 days.