Opinion
BOARD No. 07650691
Filed: November 12, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Elena M. Tull, Esq., for the employee at hearing.
Wendy M. Bittner, Esq., for the employee on brief.
Daniel M. Cunningham, Esq., for the insurer at hearing.
Paul M. Moretti, Esq., for the insurer on brief.
The insurer's appeal asserts error in the handling of the issue of notice. We see some merit in that assertion and so find it appropriate to recommit the case. See G.L.c. 152, § 11C.
The decision, upon which the insurer advances this appeal, awarded the employee a closed period of G.L.c. 152, § 34 temporary total incapacity benefits along with medical benefits for a work-related myocardial infarction. The insurer quarrels with both the assessment of the work injury as physical condition rather than an emotional trauma, and the notice determination. We summarily affirm the finding that the heart attack, though stress induced, was a physical injury. But because the findings on notice do not entirely reveal whether the law was properly applied, the case must be recommitted further findings. G.L.c. 152, § 11C.
After a series of emotional stresses at work, on November 10, 1991, the employee suffered an acute myocardial infarction at home. (Dec. 7-8.) On November 4, six days earlier, the employee and his co-workers had received a letter from the Manager of Personnel which reneged on a promised pay increase despite corporate down sizing. (Dec. 5-6.) The employee, who had spearheaded the pay increase effort, found this revelation extremely distressing. (Dec. 7.) That same day, experiencing pressure and chest pain, the employee went to the nurse's office. (Dec. 4-6.) His symptoms abated between November 4 and November 10. Id. At home on the latter date, while drafting a new proposal to revive the pay discussions, his cardiac sensations returned and became a full blown myocardial infarct. (Dec. 7.) He received immediate treatment at a hospital emergency room. A little over a month later on December 31, 1991, the employee underwent quadruple by-pass surgery. Id.
With regard to the issue of notice, the judge made the following findings:
The Employer had notice of the Employee's difficulties at work on November 4, 1991, since the Employee went to the plant nurse. Since the Employee suffered a myocardial infarction on November 10, 1991, and was hospitalized thereafter, he should not be charged with any delay that might have been incident to these events. There has been no suggestion that the treatment that the Employee has received has been anything other than reasonable and necessary. There has been no suggestion that the Insurer has been prejudiced in any way with respect to the Employee's having received adequate care for his injury. There has been no suggestion that the Insurer has been prejudiced in any way in its defense of this claim by reason of any delay in being told of the Employee's claim of an industrial injury. There has been no suggestion that Dr. Sagall [the insurer's medical expert] was in any way impeded or disadvantaged in evaluating the medical merits of the Employee's claim by reason of not having seen the Employee until November 18, 1993. I am not persuaded that the fact that the Employee filed for short-term [sic] disability benefits, and that in doing so he stated that his disability was not work-related, was intended to mislead the Employer or the Insurer, nor that it did in fact mislead them. The Employee's Claim was filed within the time set by statute, and was not untimely.
(Dec. 9-10.)
Based on these subsidiary findings of fact, the judge concluded that the employee's claim was not barred by reason of lack of proper notice. (Dec. 12.)
The relevant provisions of G.L.c. 152 that address the issue of proper notice are the following:
No proceedings for compensation payable under this chapter shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof. . . .
G.L.c. 152, § 41 (as amended by St. 1965, c. 487, § 1; St. 1985, c. 572, § 50).
Such notice shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury unless it is shown that it was the intention to mislead and that the insurer was in fact misled thereby. Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice.
G.L.c. 152, § 44 (added by St. 1911, c. 751, pt. 2, § 18; St. 1920, c. 223, § 1).
The employee has the burden of proving notice as well as mistake or absence of prejudice to the insurer. Brunetti v. Avon Products, Inc., 8 Mass. Workers' Comp. Rep. 71, 72 (1994). On the issue of notice, § 44 provides employees with several exculpatory options. In sustaining the burden, an insufficient notice can be ruled valid, so long as there was no intent to mislead. Where notice is entirely lacking, an employee may show actual knowledge on the part of the insurer, the employer or its agent, or he can show that the absence of notice did not prejudice them. See supra G.L.c. 152, § 44.
Because the industrial accident occurred at home and not in the work place, actual knowledge of a work-related injury was unlikely. Though the employer was aware of the employee's consternation about the pay increase turnabout and knew that the employee experienced cardiac discomfort on the day of the unfortunate announcement which compelled him to see the company nurse, it is highly doubtful the employer could be found to actually know that the facts surrounding the employee's heart attack at home would eventuate in a workers' compensation claim.
Reasonably, under the circumstances, the judge spent no time assessing actual knowledge. Instead he looked to the issue of whether the want of notice prejudiced the insurer. We agree with the insurer that the judge appears to have shifted the burden of proof regarding the issue of notice in stating that: "[t]here has been no suggestion that the Insurer has been prejudiced in any way in its defense of this claim by reason of any delay in being told of the Employee's claim of an industrial injury." (Dec. 9-10.)
Massachusetts case law recognizes two common sets of circumstances where an insurer can be found to have been prejudiced by want of notice. The ordinary forms of prejudice are the inability of the insurer to timely procure evidence and the failure of the employee to receive medical treatment promptly after the injury.Cristino v. General Motors Corp., 1 Mass. Workers' Comp. Rep. 226, 230 (1987), citing Tassone's Case, 330 Mass. 545, 548 (1953) andRobinson's Case, 354 Mass. 282, 284 (1968).
The insurer argues that its silence at hearing on the issue of notice was its prerogative. (Insurer's Brief 14.) As support it cites Zabec's Case, 302 Mass. 465, 468 (1939), for the proposition that "[i]t could make its contention and remain silent."Id. It is, of course, right in this regard. The Zabec court however went on to illustrate how an insurer who exercises this strategy does so at its own peril because on review, if the evidence in the record supports the judge's conclusions, then the notice ruling is sustainable. Id. The employee here, as in Zabec ". . . was required to prove a negative and, in the absence of specifications from the insurer, his proof would extend to the whole case and be sufficient to exclude any reasonable probability of prejudice resulting from the two [common] causes in question."Id. (Emphasis added). In fact, his "burden [was] sustained if he introduce[d] evidence from which a reasonable inference can be drawn that the insurer suffered no prejudice." Id. at 469.
The insurer on appeal does not dispute the factual basis of the occurrence — receipt of the manager's November 4, 1991 letter, the disturbance it caused the employee and that while writing a response at home six days later, he had a heart attack. (Dec. 5-6.) Therefore, this case does not involve possible prejudice due to the insurer's having to investigate and procure evidence about what happened at a time remote from the injury. See Tassone's Case, supra.
The dispute did not involve the factual background, rather it involved whether medical causation could be established. In this regard, the judge noted that the insurer's expert was not handicapped in his assessment of the medical evidence by any delay in his examination related to late notice of the industrial injury. Moreover, the judge specifically adopted the opinion of the employee's expert, whose first examination of the employee was twenty-one months after his heart attack and only three months before that of the insurer's doctor. (Dec. 7-8; Baker Dep. 5.) Finally, the judge determined that the employee had received adequate, reasonable and necessary care for his injury. Placed, as it was, amidst his determinations on proper notice, we take this finding to mean that the employee's medical treatment was prompt and that the employee did not incur further medical damage by a failure to seek treatment. See Robinson's Case, supra. Cf.Cristino, supra. Indeed, the employee reported to the emergency room immediately upon experiencing his acute cardiac episode on November 10, 1991 and under went quadruple bypass surgery six weeks later. (Dec. 7.)
The parties "opted out" of the § 11A medical examination, as initial liability was disputed. See 452 Code Mass. Regs. §§ 1.02 and 1.10 (7).
One would be hard put to argue delay in a medical examination as a basis for a finding of prejudice due to late notice since the institution of the impartial medical examination system under the provisions of G.L.c. 152, § 11A. In § 11A cases, the examination which serves as the basis for the exclusive medical evidence in the case necessarily takes place at a time remote from the injury and after a claim has been filed at the Department.
Thus, under the common indices of prejudice caused by lack of notice, the decision is sustainable. However, having preserved the issue of notice at hearing, the insurer in its brief suggests detriment from a different source. It argues that the employee's application for short term disability payments, was tantamount to a statement that the injury was not work-related. (Insurer's Brief 14-15.)
Examining the decision for findings as to whether prejudice arose from this unusual source, we find only the enigmatic conclusion that the employee did not intend to mislead the employer or insurer, nor were they in fact misled. (Dec. 10.) A finding on the lack of intention to mislead under § 44 goes to the issue of notice made but done so inadequately. See § 44, supra. As discussed above, all of the other findings on the issue address prejudice where there is no notice. We cannot tell from the finding that neither the employer nor the insurer were misled, whether the judge had shifted gears to find that the employee's application for short term disability was notice not ". . . held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury . . ." or whether he continued to conclude there was no notice whatsoever. Id. If the former, we are at a loss to explain how this claim for disability benefits can be considered notice of the industrial injury under § 41. If the latter, then the judge would have to address whether or not the employee's complete failure to give notice resulted in any prejudice to the employer or insurer.
Because our review is governed by the standards set out in G.L.c. 152, § 11C, this unresolved ambiguity in the findings, which depends on the judge's assessment of the facts, makes this case appropriate for recommittal. See G.L.c. 152, § 11C (the reviewing board may, when appropriate recommit a case for further findings). See also Praetz v. Factory Mutual Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993) (judge must address issues such that on review the board can reasonably determine whether the correct rules of law have been applied to facts properly found).
Accordingly, we recommit the case for further findings and a decision consistent herewith.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: November 12, 1996
I concur with reversal and recommittal because the judge improperly allocated the burden of proof under G.L.c. 152, § 44 and made inadequate findings regarding notice and prejudice.
The insurer does not attack the judge's conclusion that the myocardial infarction occurred in the course of employment.
The court has interpreted G.L.c. 152, § 44 to require proof as to the nature of the injury, i.e. whether it was a specific event which gave rise to the claim, necessitating investigation, or whether the claim arose gradually from circumstances which were apparent to the employer. Where the injury arose from a single occurrence, the court has been more likely to find prejudice from lack of notice. Pena's Case, 5 Mass. App. Ct. 451, 455, 363 N.E.2d 1333, 1336 (1977). For example, in Hatch's Case, 290 Mass. 259, 195 N.E. 385 (1935), the court reversed an award for a heart condition. There, the employee suffered symptoms while shovelling snow on the job. He went to the doctor that day. He subsequently died; the death certificate did not relate the death to his employment. The single member found that the insurer was not prejudiced by reason of such failure because the employer had knowledge of the deceased's condition; that the witnesses were within the employer's knowledge and employ; and that the employee had competent medical attendance from the date of the injury until his death. Id., 290 Mass. at 291, 195 N.E. at 386. The court reversed the award, holding that the factual finding of no prejudice was unsupported by the record. As here, there was no evidence that the employer had knowledge of the injury. The court in dismissing the employee's claim advised:
As to this question the burden of proof was upon the claimant. Johnson's Case, 279 Mass. 481, 485, 181 N.E. 761; Gaffer's Case, 279 Mass. 566, 568, 181 N.E. 763. Although this burden of proof could be sustained by warrantable inferences from the circumstances, without evidence specifically directed to disproving particular forms of prejudice, it cannot be supported by surmise or conjecture. Sponatski's Case, 220 Mass. 526, 528, 108 N.E. 466, L.R.A. 1916A, 333; Kangas' Case, 282 Mass. 155, 158, 159, 184 N.E. 380. There was no evidence to rebut the natural inference that the absence of notice might well have prejudiced the insurer by preventing an investigation of the applicability of the Workmen's Compensation Act.
Id., 290 Mass. at 262-263, 195 N.E. at 386-387 (emphasis supplied). In Meagher's Case, 293 Mass. 304, 200 N.E. 1 (1935), the court reached a similar result, reversing a finding of no prejudice. There, the notice was not given for roughly a year after the specific causative event and the record lacked evidence of excuse or prejudice. The court repeated its dicta from Kangas' Case, supra:
Want of notice . . . may prejudice an insurer by preventing an investigation of the applicability of the Workmen's Compensation Act, and of the nature and extent of any injury, while the witnesses are still available with memories unfaded and minds uncolored by partisanship. . . . The burden of proof is on the claimant to show that the insurer was not prejudiced by want of the notice prescribed by the statute.
Id., 293 Mass. at 308-309, 200 N.E. at 3.
In addressing prejudice, the judge must make a specific factual findings regarding the length of time between the injury and the notice. Herson's Case, 341 Mass. 402, 405, 169 N.E.2d 865, 868 (1960); see Pena's Case, 5 Mass. App. Ct. at 453-454, 363 N.E.2d at 1335 (no finding as to the exact date the employee gave notice of his injury and filed his claim; case remanded for further findings of fact as to prejudice). The longer the delay, the more there is a likelihood of prejudice. For example, where the delay was a little over nine months, the court said that "[o]rdinarily it might be expected that an insurer would suffer prejudice by so long a delay." De Filippo's Case, 245 Mass. 308, 310, 139 N.E. 543, 544 (1923).
Here the record does not contain a copy of the original claim or any reference to the date of its filing. We cannot ascertain whether its filing was the insurer's first notice of the injury. In my opinion, on remand, the parties should offer evidence on this point.
The factual findings should specify whether the case is so clear that prompt notice and investigation could not have unearthed anything more favorable to the insurer. If so, prejudice is negated. If not, then the natural inference is that prejudice exists. Thus in Russell's Case, 334 Mass. 680, 138 N.E.2d 286 (1956), the court reversed an award for a heart condition, finding that it "was a case . . . where a speedy investigation was particularly important in order to determine the reality and effect of the alleged injury for conceivably such an investigation might have revealed that the employee's preexisting condition was not aggravated by the overexertion and that his subsequent death was due to that condition rather than the alleged injury. 334 Mass. at 683, 138 N.E.2d at 288.
A finding that an employee received prompt and competent medical treatment will not end the inquiry. Pena's Case, 5 Mass. App. Ct. at 455, 363 N.E.2d. at 1335. "There are . . . forms of prejudice other than the possibility that the employee will not receive prompt and proper medical care." Garrigan's Case, 341 Mass. 413, 418-419, 169 N.E.2d 870, 874 (1960), and see cases cited therein. In remanding for further findings of fact, the court noted that "[a] heart case . . . is one about which it is particularly important to an insurer to make prompt and thorough investigation, while events are fresh in the minds of witnesses and while informative medical tests close to the time of the alleged injury can be undertaken." Id. It noted that it may have been advantageous for the insurer to timely investigate the extent of post-injury disability and voiced concern that the doctors who initially treated the employee did not testify and were perhaps unavailable. Id. In Herson's Case, supra, the court remanded for further findings as to whether electrocardiograms relied upon by medical witnesses were still available to the insurer after the claim was filed and whether the insurer had access to the doctors who treated the employee but did not testify. Id., 341 Mass. at 405-406, 169 N.E.2d 868. In Thibeault's Case, the court indicated that the unexplained failure to give early notice suggested prejudice. Id., 341 Mass. 647, 651, 171 N.E.2d 151, 153 (1961). It specifically noted the absence of testimony from the initial treating physicians and concluded: "We think the inferences reasonably to be drawn from the evidence very strongly suggest that the absence of notice . . . [was] prejudicial . . ." Id., 341 Mass. at 652, 171 N.E.2d at 154. However, the court deferred to the administrative judge by remanding for express subsidiary findings to anchor his inference of the absence of prejudice in the evidence of record. Id. The Appeals Court reached similar results in Pena's Case, supra, and Therrien's Case, 2 Mass. App. Ct. 795, 307 N.E.2d 586 (1974). Therefore ample precedent exists for our conclusion that a remand for further findings of fact on the issue of prejudice is appropriate. See G.L.c. 152, § 11C ("The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of fact").
One other issue requires further elucidation on remand. The judge found that the employee's application for short-term disability benefits was not intended to mislead, and did not mislead, the insurer even though the application stated that the disability was not work-related. (Dec. 10.) That finding begs the question of prejudice, which only arises in cases where there is no knowledge of the injury. Furthermore, the finding was conclusional and leaves us in doubt as to its evidentiary basis. The judge found that the employer knew that the employee had sustained a heart attack at home on a Sunday. This finding does not show knowledge that a work-related injury was claimed. Thibeault's Case, 341 Mass. at 650-651, 171 N.E.2d at 153. Although the judge properly found that the employee received first aid treatment at work several days preceding the injury, he concluded that the myocardial infarction did not begin at that time. Therefore, the relevance of the first aid treatment to the question of employer knowledge is unclear. I are unable to divine any other basis for employer knowledge; nor can I understand the basis for an inference that the insurer was not prejudiced by the employee's action.
The majority apparently cannot find one either as it assessed the likelihood of actual notice as `unlikely" and did not direct the judge to make further findings on it. See slip op. 4.
An insurer is harmed when, from the nature of the knowledge which it acquires, it is lulled into inactivity in an investigation which it would have actively pursued had it been aware of the true nature and basis of the employee's claim. Curtin's Case, 354 Mass. 45, 47, 235 N.E.2d 34, 36 (1968). See Russell's Case, supra, 334 Mass. at 683. The short-term disability application might have misled the employer into regarding the heart attack as in not work-related. Garrigan's Case, 341 Mass. at 418, 169 N.E.2d at 874. It is my opinion that, on remand, if the judge finds that inaccurate notice was given, he should make specific subsidiary findings to evidence of events or conversations putting the employer on notice that incidents at or connected with work had occurred which might constitute a compensable injury.
For the above reasons, I join in the order of recommittal.
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: November 12, 1996