Opinion
16-P-917
03-24-2017
David J. LAROCHE'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, David J. LaRoche, appeals from the denial of a third claim for disability benefits. The history of the case is not in dispute.
The employee's first claim, filed promptly after a June, 2004, work-related accident, was resolved in 2008 when the employee accepted a lump-sum settlement following knee replacement surgery. In 2009 the employee filed a second disability claim allegedly arising from the same June, 2004, accident; an administrative judge denied that second claim in 2011 on claim preclusion grounds. See LaRoche's Case , 84 Mass. App. Ct. 1132 (2014) (LaRoche I ). In 2012, while LaRoche I was before the reviewing board, the employee filed his third and present claim, alleging that he is disabled as a result of low back pain arising from a September, 2004, accident. An administrative judge bifurcated the proceedings, first considering whether the employee timely noticed his present claim. See G. L. c. 152, § 41.
An employee must give an insurer notice of claim "as soon as practicable" following an industrial accident and in no event later than "within four years from the date the employee first became aware of the causal relationship between his disability and his employment." G. L. c. 152, § 41, as appearing in St. 1985, c. 572, § 50. It is the employee's burden to establish that the insurer in fact had timely notice, either directly from the employee or from some other source. Berthiaume's Case , 328 Mass. 186, 189-190 (1951).
In holding the employee's notice untimely the administrative judge specifically found that the employee became aware of the causal relationship between his presently-claimed disability and his employment no later than end-year 2005. See Sullivan's Case , 76 Mass. App. Ct. 26, 31-32 (2009). The administrative judge so held after taking judicial notice of file documents from the earlier proceedings, considering and adopting substantial portions of the G. L. c. 152, § 11A, impartial physician's report and after entertaining the employee's testimony. The employee raises no evidentiary challenges. The reviewing board summarily affirmed.
While for present purposes we need not detail the entire record, discussed at some length in the administrative judge's decision, we do take special note of the employee's own retained expert's, Caron's, opinion letter and treating physician Bullock's treatment notes dated December, 2004, and June, 2005, respectively, reflecting that the employee was at those times experiencing and being treated for lower back pain. Also of particular note is Caron's opinion letter dated November 2005, in which Caron specifically opines that the employee has experienced a "loss of function which is causally related to his injury of June 24, 2004 ... for his low back chronic pain, swelling and synovitis [constituting] an 8% impairment of the whole person.... The patient remains disabled and his disability is causally related to his injury at work ...".
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Failure of timely notice is not invariably fatal. See G. L. c. 152, § 44. However, to avoid a § 41 bar the employee must demonstrate that such failure caused no prejudice. Berthiaume's Case , 328 Mass. at 190 ; Russell's Case , 334 Mass. 680, 682 (1956). The employee did not raise below, and has thus waived, McCormick v. Labor Relations Commn ., 412 Mass. 164, 169-170 (1992), any claim that his untimely notice caused no prejudice.
Decision of reviewing board affirmed .