Opinion
No. 11–P–1846.
2012-06-12
BONNIE MAHONEY'S CASE.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Bonnie Mahoney, appeals from a decision denying her motion for sanctions against the self-insurer, Demoulas Supermarkets, Inc., pursuant to G.L. c. 152, § 14(1). We affirm.
Background. The employee sustained a work-related injury to her low back in March, 2008. Although she was treated for the injury, she did not miss any work at the self-insurer. In August or September, 2008, she ceased her employment at the self-insurer and began working as a cashier at a car wash.
While working at the car wash, the employee sought additional medical treatment for her injuries, which the self-insurer refused to pay in June, 2009.
The self-insurer claims she was dismissed for theft; the administrative judge does not make a finding on this point, merely noting that the self-insurer “betrayed some animus toward the employee by stating [she] was dismissed ... for ‘pilfering,’ “ but that the employee did not admit to any wrong-doing.
The employee filed a claim, which was initially denied at conference. The employee appealed, and an impartial medical examiner (IME) was appointed. The IME concluded that the treatment sought by the employee was causally related to the injury, and, shortly before the G.L. c. 152, § 11, hearing, the self-insurer offered to pay the disputed medical bills. However, the employee refused the offer, claiming the insurer failed to concede a causal relationship. After the § 11 hearing, the administrative judge concluded, consistent with the IME's report, that the treatment was causally related to the industrial injury and ordered the self-insurer to pay the disputed medical bills. Because the self-insurer had offered to settle the matter prior to hearing, the administrative judge declined to award attorney's fees to the employee. The employee appealed that decision, which was the subject of a related case. Mahoney's Case, 81 Mass.App.Ct. 1135 (2012).
While that appeal was pending, the employee filed the claim for sanctions that is the subject of this appeal. The self-insurer had initially defended the claim by suggesting that the employee must have sustained a new injury while working for her new employer, but presented no hard evidence to support the assertion. The administrative judge determine, nonetheless, that the self-insurer had “legitimate cause for skepticism” given the “significant passage of time, the severance of the employment relationship and the alleged cause of that severance, and the commencement of an employment relationship with another employer.” He noted that the self-insurer had the right to put the employee's claim to the test, and that after the IME's report supported her claim, it offered to pay for the claimed medical treatment. The reviewing board summarily affirmed the administrative judge's order denying the employee's § 14(1) claim.
In cases of summary affirmance of a decision of the administrative judge by the reviewing board, “the reviewing court is inspecting the findings and reasoning of the administrative judge .” See Dalbec's Case, 69 Mass.App.Ct. 306, 313 (2007); Whitman's Case, 80 Mass.App.Ct. 348, 352 (2011).
On appeal, the employee argues that the administrative judge employed the wrong legal standard by failing to assess (a) the self-insurer's conduct on an objective basis and (b) the reasonableness of the denial of benefits on the information available to the self-insurer at the time of the initial denial. See DiFronzo's Case, 459 Mass. 338, 342–343 (2011), quoting from Gonsalves v. IGS Store Fixtures, Inc., 13 Mass. Workers' Comp. Rep. 21, 24 (1999) (adopting “objective standard of reasonableness, inquiring whether a ‘cautious and prudent person’ would consider the grounds for ... defending the proceeding to be reasonable”; insurer's defense not without reasonable ground where it has “some plausibility”). We address those issues in turn.
The employee claims that the administrative judge erred as a matter of law, because he determined the insurer was “entitled to wait for the outcome of the [§ 11A] impartial examination.” To the contrary, the judge found that at the time it initially denied the claim, the self-insurer had “legitimate cause for skepticism.”
The employee also claims that the judge erred in stating that the insurer had the right to put the employee to her burden of proof. If the insurer had that right, she argues, the employee would never be entitled to a penalty when the claim is initially denied without reasonable grounds. However, the administrative judge made this comment based on his determination that, initially, the self-insurer had reasonable grounds to doubt the employee's claim.
In addition, the employee contends that the judge's finding that the self-insurer had “legitimate cause for skepticism” was not supported by the evidence. In particular, she argues that the finding of a “significant passage of time” is not supported by the interval between the injury, March, 2008, and the cessation of payments by the self-insurer in June, 2009. We disagree. On these facts, the administrative judge reasonably could have determined that a fourteen-month interval for an injury that resulted in no loss of work constituted “a significant passage of time.”
Finally, the employee argues that the administrative judge improperly considered the circumstances of the termination of her employment and the fact that she had obtained a new job where there was no evidence indicating she suffered a new injury while employed there. While each of these considerations alone may have been insufficient, in combination with the significant passage of time, they appear to support the judge's ultimate finding that the self-insurer had legitimate cause for skepticism.
Accordingly, we conclude that the administrative judge's decision is not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law. See DiFronzo's Case, supra at 341.
The employee's request for appellate attorney's fees is denied.
Decision of reviewing board denying employee's § 14(1) claim affirmed.