Opinion
BOARD No. 005258-94
Filed: August 29, 1997
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein, and McCarthy)
APPEARANCES
George N. Keches, Esq., for the employee at hearing.
Jack J. Vultaggio, Esq., for the employer at hearing.
Paul M. Moretti, Esq., for the employer on brief.
Janice Biederman, Esq., for the Trust Fund at hearing.
D. Michael Arter, Esq., for Aetna Casualty Surety at hearing and on brief.
The employer appeals from the decision of an administrative judge that Aetna Casualty Surety was not on the risk at the time of the employee's injury, rendering the employer uninsured. Pursuant to G.L.c. 152, § 65 (2)(e), the judge ordered the Workers' Compensation Trust Fund to pay the employee's § 34 benefits, thereby triggering its right under § 65 (8) to recover such funds from the employer. The employer contends that the judge's decision is inadequate for appellate review of the coverage question. We agree and therefore exercise our discretionary power under G.L.c. 152, § 11C to recommit the case for further findings on that issue.
John P. Cuzzi, the employee, is a single, twenty-three year old graduate of Don Bosco Technical High School. He began employment with The Ice Box on June 5, 1993. His duties included the loading and unloading of bags of ice on pallets, occasionally this was done with the assistance of a forklift. Cuzzi would then deliver the ice to various customers over the course of the day. (Dec. 4.)
On January 12, 1994, while in the course of his employment, Cuzzi twisted his knee when it became wedged between a pallet of ice and the side of the delivery truck. Cuzzi returned the truck to his employer, informed the dispatcher and Mr. Lillis, his employer, of the incident and then called his sister to take him to the hospital. After treatment at the Milton Hospital emergency room, Cuzzi came under the care of Dr. William Mitchell, an orthopedic specialist, at the New England Baptist Hospital. (Dec. 5.)
In March 1994, Cuzzi underwent reconstructive surgery to his right knee. He had a second knee surgery in June 1994, and the possibility of yet another surgical procedure exists. Since his first surgery, Cuzzi has received physical therapy. Cuzzi has been fitted with a knee brace and is unable to kneel, squat or lift heavy objects. (Dec. 5.)
Believing the employer to be uninsured, Cuzzi filed a claim against the Workers' Compensation Trust Fund. The claim was not accepted. Pursuant to § 10A, a conference was held on September 1, 1994. At the conference, the Trust Fund asserted that the employer was insured by Aetna Casualty Surety (Aetna) at the time of the injury. The judge joined Aetna as a party and ordered that the Trust Fund pay benefits to Cuzzi under §§ 34, 13, and 30. The Trust Fund appealed to a hearing de novo. (Dec. 2.)
On November 22, 1994, pursuant to § 11A, Cuzzi was examined by Dr. Peter P. Anas, a board certified orthopedic surgeon. Neither party opted to depose the impartial medical examiner and his medical report was submitted into evidence. (Dec. 1.) Doctor Anas diagnosed Cuzzi as status post dislocation, right patella and fracture of the tibial tubercle osteotomy with persistent nonunion. The impartial examiner opined that Cuzzi's knee injury was causally related to his employment and that he had not reached a medical end result. Further, the impartial examiner opined that additional surgery was appropriate as the tibial tubercle fracture had not healed. (Rep. of Dr. Peter P. Anas, 2; Dec. 6.)
After the evidentiary hearing, the administrative judge determined that Cuzzi sustained a personal injury to his right knee arising out of and in the course of his employment for R.J. Lillis Enterprises, Inc. d/b/a the Ice Box on January 12, 1991. The judge adopted the medical opinion of the § 11A impartial medical examiner and found Cuzzi temporarily, totally disabled and not yet at an end medical result. (Dec. 9.) Additionally, the judge determined that Aetna was not on the risk at the time of Cuzzi's injury and that the appropriate insurer was the Trust Fund. (Dec. 10.) Accordingly, the administrative judge ordered the Trust Fund to continue § 34 benefits at a rate of $192.00 per week, based on an average weekly wage of $320.00; to pay all reasonable and necessary medical expenses related to Cuzzi's injury; and to pay a legal fee to employee's counsel. (Dec. 11.) The claim for benefits against Aetna was denied and dismissed. (Dec. 12.)
Subsequent to this decision, the Trust Fund and the employee reached a lump sum settlement pursuant to G.L.c. 152, § 48. The lump sum agreement did not resolve the disputed coverage issue.
On appeal, the employer contends that the decision is inadequate for proper appellate review and that the administrative judge erred when he determined "that no evidence was submitted at hearing to substantiate that R.J. Lillis [The Ice sox] was insured for Worker's Compensation at the time of injury on January 12, 1994." (Employer's Br., 13, quoting Dec. 10.) We agree with both arguments.
The decision fails to contain adequate findings regarding the coverage issue. It does not even mention G.L.c. 152, § 65B, the governing statutory provision, or make findings required in order to properly apply that provision. Section 65B, as amended by St. 1991, c. 398, § 90A provides, in pertinent part:
If, after the issuance of a policy under section sixty-five A, it shall appear that the employer to whom the policy was issued is not or has ceased to be entitled to such insurance, the insurer may cancel or otherwise terminate such policy in the manner provided in this chapter; provided, however, that any insurer desiring to cancel or otherwise terminate such a policy shall give notice in writing to the rating organization and the insurer of its desire to cancel or terminate the same. Such cancellation or terminations shall be effective unless the employer, within ten days after the receipt of such notice, files with the department's office of insurance objections thereof, and, if such objections are filed, the commissioner, or his designee shall hear and decide the case within a reasonable time thereafter.
In contrast to G.L.c. 152, § 63, this section requires notices of cancellation or termination be sent to the policyholder and the rating organization and such termination or cancellation is effective unless the policyholder objects in writing within ten days of its receipt of such notice by filing its objections with the office of insurance at the DIA. Because of a typographical error, the present provisions specify the notice of cancellation be sent to the "insurer" rather than "insured" (policyholder). See Quintal v. Michael K. Berube d/b/a M. Berube Construction Co., 9 Mass. Workers' Comp. Rep. 375, 379, n. 1 (1995).
On recommittal, the judge must apply this provision and determine whether 1) it appeared that the employer ceased to be entitled to insurance coverage; 2) the insurer gave notice in writing to the rating organization of its desire to cancel; 3) the insurer gave notice to the employer of its desire to cancel; 4) whether and when the employer received the notice; and, if so, 5) whether the employer within 10 days of receipt filed an objection to the cancellation.
See n. 2 supra.
The judge erred in finding that the employer had not presented evidence on the coverage question. Lillis, president of the employer corporation, testified that he always had workers' compensation since 1979 (Tr. 69); that he never received notice of cancellation or termination (Tr. 47); that, if he received such notification, he would have taken steps to rectify the problem (Tr. 68); that Lillis experienced difficulty receiving his mail at his Westwood home, which was the original policy address (Tr. 52, 55, 66); that, nine months prior to this work injury, on March 1, 1993, Lillis instructed Aetna to immediately change his mailing address from Westwood to Roslindale (Tr. 52, 66; Employer's Ex. 1); that, contrary to the change of address instruction, on March 9, 1993 Aetna mailed a bill and notice of renewal to the original Westwood address (Tr. 81); that, similarly contrary to the employer's written instruction, Aetna mailed the notice of termination to the original Westwood address instead of Roslindale (Tr. 82-83). This evidence, if found credible and reliable, could have rebutted the mailbox rule, and supported a finding that the employer never received notice of termination in accordance with Section 65B. Without such receipt, the employer's assigned risk policy would have remained in effect despite non-payment of the premium.
A properly addressed letter with prepaid postage, deposited in the U.S. mail, is presumed to have reached its addressed destination. This prima facie evidence of receipt, once countered by evidence of non-delivery, creates an issue of fact for the administrative judge to decide. Hughes, K., Massachusetts Practice, Evidence, § 308 at 375 (1961).
Because the decision does not disclose adequate factual findings and reasoned decisionmaking within the particular requirements of G.L.c. 152, § 65B, we reverse the coverage decision and recommit that issue for further findings of fact and conclusions of law consistent with this opinion. As the administrative judge who issued this decision no longer serves in the department, we forward this case to the senior judge for reassignment to a new administrative judge for hearing de novo. The parties may assent to have the case heard by the new judge on all or any portion of the evidence taken before the earlier judge. Nartowicz's Case, 334 Mass. 684, 138 N.E.2d 273, 275 (1956).
So Ordered.
_________________________ Suzanne E. K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge