Opinion
11-P-2080
12-07-2012
DOUGLAS KILLAM'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The insurer appeals a summary affirmance by the reviewing board of the Department of Industrial Accidents of an administrative judge's decision granting workers' compensation benefits. The insurer admits that Killam's back injuries resulting from his fall on November 8, 2007, and his lifting steel rebar at work the following day are compensable. However, the insurer contends that the administrative judge erred in finding Killam's later painting activity to be nonwork related and thus applied the wrong legal standard of intervening cause. Because the administrative judge did not err nor were her findings or rulings arbitrary or capricious, we affirm.
The employer, Quinn Brothers of Essex, Inc., is not a party to this appeal.
When the reviewing board summarily affirms an administrative judge's decision, we 'inspect[] the findings and reasoning of the administrative judge' to determine if her decision was arbitrary or capricious. Brommage's Case, 75 Mass. App. Ct. 825, 827 (2009). The decision 'must be upheld unless it is wholly lacking in evidentiary support, or a different conclusion is required as a matter of law.' McElroy's Case, 397 Mass. 743, 745 (1986) (citations omitted). Because the administrative judge determined that when Killam painted his brother's kitchen he was engaged in 'nonwork,' she applied the 'intervening cause' standard. Under that standard, if Killam's painting was an intervening cause of his resultant incapacity, then the insurer would not be liable. 'The general proposition is that non-work-related activity which is normal and reasonable, and not performed negligently in light of the employee's impairment, does not constitute an intervening cause, if . . . some causal connection to the original industrial injury remains.' Drumond v. Boston Healthcare for the Homeless, 22 Mass. Workers' Comp. Rep. 343, 345 (2008). 'The industrial injury remains compensable, relative to that later event, if the employee can prove any continuing causal connection between the work and the resultant incapacity.' Ibid., quoting from Tirone v. MBTA, 15 Mass. Workers' Comp. Rep. 283, 286-287 (2001) (emphasis original).
This court, as well as commentators, have suggested that the intervening cause standard should not be applied in workers' compensation cases because workers' compensation is meant to compensate without reference to fault. See Dube's Case, 70 Mass. App. Ct. 121, 126-128 (2007) (refusing to apply the intervening cause standard to G. L. c. 152, § 26A, which allows dependents to recover when an employee is not responsible for his suicide 'due to' injuries sustained on the job); Nason, Koziol, & Wall, Workers' Compensation § 10.12 (3d ed. 2003 & Supp. 2012). But see Panagotopulos's Case, 276 Mass. 600, 608 (1931) (approving the intervening cause standard). They suggest that, absent wilful and serious employee misconduct, if the compensable injury was a 'but for' cause of the ultimate disability, the employer should remain liable. Nason et al., supra. We need not decide the issue here because the judge's determination that the causal chain was not broken was neither arbitrary nor capricious under either standard.
The judge was neither arbitrary nor capricious in determining that Killam's painting of his brother's kitchen after Killam had gone through a period of rehabilitation and recuperation was normal, reasonable activity and that his back injuries retained a causal connection to the original work accidents of November 8-9, 2007. Among other evidence, the judge was entitled to credit the testimony of the independent medical examiner that there was a causal relationship between Killam's ruptured disc at L4-L5 and his subsequent surgery, and the incidents at work on November 8-9, 2007. She was also entitled to, and did, credit Killam's testimony that he had continuous, persistent back pain from the date of his industrial accidents. 'Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge.' Brommage's Case, supra, quoting from Pilon's Case, 69 Mass. App. Ct. 167, 169 (2007).
The insurer argues in passing that the independent medical examiner's testimony was self-contradictory. It was not. But even if it had been, the administrative judge would have been entitled to credit some parts rather than others.
The insurer argues that we should apply the causation rule typically reserved for subsequent insurers. That is, when an employee suffers multiple compensable injuries which were 'to the slightest extent a contributing cause of the subsequent disability,' the employer at the time of the last of such injuries will pay the entire amount of compensation. Rock's Case, 323 Mass. 428, 429 (1948). Because the painting Killam did is work, the insurer contends, and because the activities contributed at least to a slight extent to Killam's disability, the insurer should not have to compensate him for his injuries.
However, the insurer's interpretation of 'work' is in stark contrast with the workers' compensation scheme. 'Work' activities contemplate actions taken in an employment relationship as defined by the workers' compensation statutes. See Twomey v. Greater Lawrence Visiting Nurses Assoc., 5 Mass. Workers' Comp. Rep. 156, 158-159 (1991) (contrasting the standards for subsequent injuries 'which arose out of and in the course of employment' with those following a 'non-work activity or incident'). Killam's brother was not an 'employer' within the meaning of the statute because he engaged Killam to paint the kitchen of his own home. G. L. c. 152, § 1(5). See Peters v. Michienzi, 385 Mass. 533, 536 (1982). The judge's application of the 'nonwork' standard was not in error.
'[T]he owner of a dwelling house having not more than three apartments and who resides therein, or the occupant of a dwelling house of another who employs persons to do maintenance, construction or repair work on such dwelling house or on the grounds or buildings appurtenant thereto shall not because of such employment be deemed to be an employer.' G. L. c. 152, § 1(5).
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The decision of the reviewing board summarily affirming the decision of the administrative judge is affirmed and, accordingly, the employee's request for reasonable attorney's fees and costs, pursuant to G. L. c. 152, § 12A, is allowed. Within two weeks of the date on which this decision is issued, Killam is to submit a fee application that comports with Fabre v. Walton, 441 Mass. 9, 10-11 (2004). The insurer shall file any response within two weeks thereafter.
So ordered.
By the Court (Cohen, Katzmann & Wolohojian, JJ.),