Opinion
BOARD Nos. 052495-95, 054608-95, 055875-95, 055876-95, 052235-95
Filed: November 3, 1999
REVIEWING BOARD DECISION
(Judge Maze-Rothstein, Levine and Carroll)
APPEARANCES
Mark H. Likoff, Esq., for the Employee.
Scott Richardson, Esq., for Travelers (Business Interiors) at hearing.
Paul Moretti, Esq., for Travelers, on brief.
Robert Snell, Esq., for Aetna (Metro Flooring).
Patricia A. Costigan, Esq., for New Hampshire Insurance (Sienna Construction).
Dino N. Theodore, Esq., for the Workers' Compensation Trust Fund (Metro Flooring).
James F. Fitzgerald, Jr., Esq., for Metro Flooring (uninsured).
In this multiple insurer case, Travelers Insurance Company (Travelers) appeals a decision finding it liable for payment of G.L.c. 152, § 34, temporary total incapacity benefits. It contends error in the finding that Aetna Insurance Company (Aetna) properly cancelled its policy of insurance with Metro Flooring, Inc. (Metro) a subcontractor of Business Interiors, insured by Travelers, and that Aetna should, therefore, be liable. Travelers further contends that the judge misapplied the successive insurer rule, erred in awarding § 34 rather than § 35 benefits, and abused his discretion by increasing the amount of the attorney's fee. We conclude that the judge failed to make adequate subsidiary findings on the insurance cancellation issue, but committed no other reversible error.
Walter Dembitzski was 54 years old when the hearing concluded in this case. (Dec. 3, 6.) He did not graduate from high school, but obtained his GED several years prior to the hearing. In 1967, he became a union floor layer, performing work that required lifting 125 to 150 pounds, using a "power stretcher" and "knee kicker," being on his hands and knees, and bending frequently. (Dec. 6.) In January 1995, he began working for Metro Flooring. (Dec. 7.) On December 12, 1995, while pulling up a piece of vinyl flooring, Mr. Dembitzski injured his lower back. (Dec. 7.) He continued to work for the next three days doing lighter work than normal. (Dec. 8.) By the weekend, his pain had increased. He went to the hospital twice. He tried to return to work the following Monday, but was unable to do so because of pain. (Dec. 8.) He remained out of work, and, on August 2, 1996, underwent a left L2-3 discectomy. (Dec. 9.) On January 22, 1997, after a course of work hardening and physical therapy, he tried to return to work for another employer, Pyramid Carpet Installation. However, his back pain became intolerable after a few days, and he left that job on January 28, 1997. (Dec. 9.)
Mr. Dembitzski filed four claims for compensation: 1) against Aetna (as the insurer of Metro, the employee's direct employer); 2) against Travelers (the insurer of Business Interiors, the subcontractor that hired Metro); 3) against New Hampshire Insurance (the insurer for Sienna Construction, the general contractor on the project); and 4) against the Trust Fund (in the event Metro Flooring was found to be an uninsured employer). (Dec. 3, 13-14.) Travelers filed a motion to join Pyramid Carpet Installation, (Pyramid) which was insured by Travelers/Aetna. The judge allowed the motion, but Pyramid/Travelers was unrepresented at the hearing. (Dec. 3.) Prior to hearing, the judge also allowed the Trust Fund's Motion to Dismiss. (Dec. 3.)
The judge referred to Pyramid's insurer in this manner (Dec. 3), but the board file indicates that Travelers was Pyramid's insurer.
A § 11A doctor examined the employee twice, on September 3, 1996, (Dec. 9), and on June 19, 1997. (Dec. 10.) The judge ruled the first report adequate, but allowed a second examination "due to the complexity of the legal issues involved and the delays in proceeding with [the] case because of the numerous parties which had been joined. . . ." (Dec. 10.) The doctor causally related the employee's ruptured lumbar disc to the injury of December 12, 1995, and found him to be permanently partially medically disabled. (Dec. 11-12.) His opinion was adopted in "all aspects." (Dec. 12.) However, after performing a vocational analysis, the judge found that the employee was totally, rather than partially, incapacitated. (Dec. 16.) He also found that no injury or exacerbation occurred while the employee worked for his last employer, Pyramid. Based on the medical opinion, the judge found the effects of the injury sustained on December 12, 1995 while the employee worked for Metro, continued uninterrupted. (Dec. 15.) He further found that Aetna had properly cancelled Metro's insurance policy effective December 6, 1995, six days before the employee's industrial accident. (Dec. 16.) Since Metro was uninsured, the judge found Travelers, as the insurer of Business Interiors, the subcontractor who hired Metro, liable under G.L.c. 152, § 18. (Dec. 17-18.) Finally, an attorney's fee double the statutory rate was awarded due to the complexity of the claim and the protracted time period over which the hearing occurred. (Dec. 19.)
General Laws c. 152, § 11A, gives an impartial medical examiner's report the effect of "prima facie evidence [with regard to the medical issues] contained therein," and expressly prohibits the introduction of other medical evidence unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report. O'Brien's Case, 424 Mass. 16 (1996).
General Laws c. 152, § 18, provides, in relevant part:
If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract with the insured, and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent or sub-contractors were insured persons.
Amended by St. 1969, c. 755, § 2.
Travelers makes four arguments on appeal, one of which has merit. It alleges that the finding that Aetna properly cancelled its workers' compensation policy on Metro was arbitrary and capricious. Travelers contends that there was neither finding, nor evidence on which to base a finding, that Aetna provided ten days prior written notice of cancellation via certified mail to Metro. Travelers further submits that the judge's finding that Metro should have been aware of the purported December 6, 1995 cancellation by virtue of notice of a prior cancellation effective June 5, 1995 is an error of law. Finally, Travelers alleges that there is conflicting evidence as to when the rating organization was notified of the purported cancellation. The findings are indeed inadequate for us "to determine with reasonable certainty whether correct rules of law have been applied to facts that could be properly found." Praetz v. Factory Mutual Engineering Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). We, therefore, recommit the case for more specific findings.
The judge made the following findings regarding cancellation of Metro Flooring's policy:
Based on the detailed records submitted by Travelers Insurance (the insurer of Metro Flooring, Incorporated), I find that Aetna Life and Casualty properly cancelled its policy effective December 6, 1995 — one week prior to the date of Mr. Dembitzski's industrial accident, I find the documentation submitted clearly demonstrated that Aetna complied with all of the regulations of this Department and of the Workers' Compensation Rating and Inspection Bureau of Massachusetts in canceling that policy for non-payment of premiums by Metro Flooring, Incorporated. I specifically find that notice was sent to the named insured employer, to the Workers' Compensation Rating and Inspection Bureau of Massachusetts, and to the Department of Industrial Accidents as required by statute. I specifically find that Metro Flooring was aware of the pending cancellation by virtue of the prior notice of cancellation (effective June 5, 1995) which resulted in its entering into an agreement for reinstatement under the terms of a repayment plan with the insurer that it failed to fully comply with, thus resulting in the final termination of the policy on December 6, 1995. I find the testimony of Leona Sanford (the supervisor of Workers' Compensation Claim for Aetna) to be both credible and convincing regarding proper compliance with procedures for canceling this insurance policy. Based on the substance of her testimony and the documents submitted, I find that the payment received by Aetna from Metro Floors on March 15, 1996 reflected a past-due installment on the pro-rata premium for the policy prior to its cancellation date and did not reflect a reinstatement of the policy after December 6, 1995. I take notice that the notice of cancellation was received by the Rating Bureau on November 27, 1995, which is within the statutory time-frame for notice, and that Aetna complied with the rules regarding certification by the United States Postal Service that the mailing was done on the date stated within the records themselves.
(Dec. 16-17.) (Emphasis added.)
Just as with other insurance contracts, a workers' compensation insurance policy may be cancelled for non-payment.Armstrong v. Town Country Carpentry, 10 Mass. Workers' Comp. Rep. 516, 521 (1996), aff'd, 47 Mass. App. Ct. 693 (1999). However, "[b]ecause insurance plays an essential role in the workers' compensation scheme and due to the serious potential effects of non-insurance on both employers and employees, requirements for cancellation of such insurance are exacting and strictly construed and applied." Id., citing Frost v. David C. Wells Ins. Agency, 14 Mass. App. Ct. 305, 307 (1982). "Notice of cancellation must be given by the required means." Armstrong, supra at 521.
Here, the decision does not identify the applicable statutory provisions nor does it analyze how Aetna complied with those provisions in canceling Metro's policy. The judge merely concluded that "the documentation submitted clearly demonstrated that Aetna complied with all of the regulations of this Department and of the Workers' Compensation Rating and Inspection Bureau of Massachusetts" (Dec. 16); that "notice was sent . . . as required by statute" (Dec. 16-17); that "the testimony of Leona Sanford (the supervisor of Workers' Compensation Claim for Aetna) [was] both credible and convincing regarding proper compliance with procedures for canceling this insurance policy" (Dec. 17); and "that Aetna complied with the rules regarding certification by the United States Postal Service that the mailing was done on the date stated within the records themselves." Id. These summations are insufficient to demonstrate compliance with the applicable law. Thus, the decision is inadequate for proper appellate review. See Cuzzi v. The Ice Box, 11 Mass. Workers' Comp. Rep. 443, 445 (1997); Praetz, supra at 47.
On recommittal, the judge must first determine whether or not the policy in question was issued under § 65A as an assigned risk. The judge and the parties appear to have assumed, and there is evidence in the record from which it could be found, that it was such a policy. (See March 18, 1998 Tr. 74-75, 80-81, 90, 118). If so, there is a ten day notice requirement to the employer and to the Workers' Compensation Rating and Inspection Bureau pursuant to § 65B. In addition, if § 65B applies, the specific findings to be made are outlined in Cuzzi v. The Ice Box, 11 Mass. Workers' Comp. Rep. 443 (1997):
General Laws c. 152, § 65B, as amended by St. 1991, c. 398, § 90A, states, 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 maimer 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 insure[d] of its desire to cancel or terminate the same. Such cancellation or termination 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.
[W]hether 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.
Id. at 445-446 (footnote omitted).
The testimony of Leona Sanford, which the judge found "credible and convincing," is inconsistent on whether Aetna properly notified Metro of cancellation. (Dec. 17.) Assuming § 65B applies, the judge must resolve these inconsistencies by making specific findings as to the date notice was given and received. In addition, the finding that "Aetna complied with the rules regarding certification by the United States Postal Service that the mailing was done on the date stated within the records themselves[,]" (Dec. 17), is meaningless without specifying the records relied on as the various records all have different dates. It is not even clear from the context of the above-quoted passage if the judge found that notice was sent by certified mail to the employer or to the insurer. He began the sentence by referring to notice to the Workers' Compensation Rating and Inspection Bureau, but the only testimony relating to a certified mailing was in reference to notice to Metro, the insured here, and the correct subject of the statutory mailing requirement. See c. 175, § 187C. The requirements of c. 175, § 187C, apply in workers' compensation cases. SeeFontaine v. Evergreen Constr., 13 Mass. Workers' Comp. Rep. 62, 65 (1999). Thus, the judge must also clearly specify whether the requirement of c. 175, § 187C — that notice be sent by certified mail to the employer — has been met.
The transcript reveals that Ms. Sanford's testimony regarding when notice was mailed to Metro Flooring varied. She was first unable to explain why the actual notice of cancellation (Ex. 2-J) was countersigned and dated November 26, 1995, but the certified mailing list (Ex. 2-I) indicated that the notice was mailed on November 20, 1995. (March 18, 1998 Tr. 122-123.) She later said she believed the notice of cancellation was actually countersigned and dated November 26, 1995. Id. at 123. She finally agreed that the cancellation notice would have actually been mailed before the date indicating it was countersigned and dated. Id. at 124.
Travelers Ex. 2-H, Notice of Issuance/Cancellation/Nonrenewal/Reinstatement, has an issuance date of November 17, 1995 and a handwritten date of November 22, 1995; Travelers Ex. 2-I, Countrywide Certified mail — Direct Notice of Cancellation, has a date of November 18, 1995 at the top, and a postal date stamp of November 20, 1995; Travelers Ex. 2-J, Notice of Cancellation, which was addressed to Metro Flooring, is countersigned and dated on November 26, 1995.
The insurer in its brief erroneously refers to Travelers Ex. 2-I as a "record of certified mailing of this notice to the Rating Bureau." (Travelers Insurer Br. 27), while the testimony clearly identified it as notice to the employer, Metro Flooring. (March 18, 1998 Tr. 105-106, 113).
General Laws c. 175, § 187C provides, in relevant part:
A company issuing any policy of insurance which is subject to cancellation by the company shall effect cancellation by serving the notice thereof provided by the policy and by paying or tendering, except as provided in this and the following section, the full return premium due thereunder in accordance with its terms without any deductions. Such notice and return premium, if any, shall . . . be forwarded to [the last address of the named insured as shown by the company's records, or, if its records contain no such address, at its last business, residence or other address known to the company] by first class mail, postage prepaid, and a notice left or forwarded, as aforesaid, shall be deemed a sufficient notice. No written notice of cancellation shall be deemed effective when mailed by the company unless the company obtains a certificate of mailing receipt from the United States Postal Service showing the name and address of the insured stated in the policy.
Amended by St. 1990, c. 287, § 2.
Finally, we agree with Travelers that the finding that "Metro Flooring was aware of the pending cancellation by virtue of the prior notice of cancellation (effective June 5, 1995)" is an error of law. (Dec. 17) This finding is clearly erroneous and underscores the question of proper application of the cancellation statutes here. It is axiomatic that the judge cannot rely on the employer's notice of a prior cancellation to find proper notice of a later cancellation. G.L.c. 175, § 187C; G.L.c. 152, § 65B; See Armstrong, supra (describing requirements of § 65B).
The requirements for notification to the rating organization (the Workers' Compensation Rating and Inspection Bureau, hereinafter "Rating Bureau") are governed not only by § 65B, but also by § 63 which both require ten days prior written notice for cancellation to be effective. On this issue, the judge wrote, "I take notice that the notice of cancellation was received by the Rating Bureau on November 27, 1995, which is within the statutory time-frame for notice. . . ." (Dec. 17.) There are two problems with this finding. First, if the notice of cancellation was received on November 27, 1995, then that was only nine days prior to the specified cancellation date of December 6, 1995. See Corey v. National Ben Franklin Ins. Co., 284 Mass. 283 (1933) (the general rule for the construction of statutes which require an act to be done within a specified period from or after a day named is to exclude such day and to include the last day of the specified period). Therefore, the notice to the rating organization would not be sufficient to cancel the policy. Second, it is not clear what the judge meant by "take notice." If he meant that he took judicial notice of the receipt of the cancellation notice, that was improper because the date the Rating Bureau received the cancellation notice is not subject to judicial notice. See Yankee Atomic Elec. Co. v. Secretary of the Commonwealth, 402 Mass. 750, 759 n. 7, (1988) ("Factual matters which are 'indisputably true' are subject to judicial notice; these include '[m]atters of common knowledge or observation within the community.'" Id., quoting Nantucket v. Beinecke, 379 Mass. 345, 352 (1979)).
General Laws c. 152, § 63, provides, in relevant part:
Such insurance shall not be cancelled or shall not be otherwise terminated until ten days after written notice of such cancellation or termination is given to the rating organization. . . .
Amended by St. 1991, c. 132, § 1.
If, on the other hand, the, judge intended to make a finding that notice was received by the Rating Bureau on November 27, 1995, it is not clear how he arrived at this conclusion. There was testimony indicating that the notice was generated on November 17, 1995, and mailed on November 22, 1995, (March 18, 1998 Tr. 144), but there was also conflicting testimony that the notice to the Rating Bureau was given on December 18, 1995. (March 18, 1998 Tr. 144-146). Neither piece of evidence compels the conclusion that the Rating Bureau received the cancellation notice on November 27, 1995. On recommittal, the judge should make explicit findings, supported by the record evidence, as to when the Rating Bureau received notice.
Travelers' second argument is that Pyramid is liable for the Mr. Dembitzski's ongoing incapacity because the employee suffered an aggravation of his pre-existing back condition while working for Pyramid. Specifically, Travelers alleges that the employee testified that he experienced increased back pain while working at Pyramid, and that his symptoms continued after the job ended, necessitating further medical evaluation and the imposition of physical restrictions. We do not agree.
Where an employee has returned to work following an initial industrial injury, the question of whether he sustained a subsequent personal injury and whether there is a causal connection between either injury and the ensuing incapacity is generally a matter for expert medical testimony. Casey's Case, 348 Mass. 572, 574 (1965). However, the issue of liability among successive insurers is a question of fact, and the findings, including all rational inferences drawn from the evidence, must stand, unless a different finding is required as a matter of law.Costa's Case, 333 Mass. 286, 288 (1955); Broughton v. Guardian Indus., 9 Mass. Workers' Comp. Rep. 561, 563 (1995). That is, the findings must have support in the expert medical testimony, as well as in the lay testimony, but it is up to the judge to determine what testimony to credit and how much weight to give it. See Relihan v. Department of Indus. Accidents, 12 Mass. Workers' Comp. Rep. 308, 309 (1998) (judge can adopt all, none or part of medical evidence) and Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801 (1995) (lay testimony may be used to support a weak medical opinion).
The judge is required to assess liability against the second insurer if a second injury "was even to the slightest extent a contributing cause of the subsequent disability." Rock's Case, 323 Mass. 428, 429 (1948). To be compensable, an injury must arise from an identifiable work-related incident or series of incidents or from an identifiable condition that is not common and necessary to all or a great many occupations. Zerofski's Case, 385 Mass. 590, 594-595 (1982). The injury need not result from a specific incident or occur at a definite time, but "may develop gradually from the cumulative effect of stresses and aggravations." Trombetta's Case, 1 Mass. App. Ct. 102, 105 (1973). Where an injury arises from such cumulative aggravation, the date of the injury becomes the date the accumulated insults cause a need for medical treatment or incapacity for work. DeFilippo's Case, 284 Mass. 531, 533-534 (1933); Jaime v. Endicott Colby, 12 Mass. Workers' Comp. Rep. 27, 29 (1998).
The courts have upheld findings of liability against a first insurer where there was medical and lay evidence to support that result, even though the evidence could have supported a different result. In Rock's Case supra, the court upheld such a finding because, based on evidence that the employee continually complained of back pain after his first injury, it reasoned that "it could have been found that the employee had not recovered" from his first injury and that the second lifting incident was not an intervening cause of his incapacity. Id. at 430. InCosta's Case, supra, the court again upheld liability against the first insurer based on evidence that during much of the six-year period the employee worked after his first injury, he had backaches which became progressively worse; that there was medical testimony relating the employee's incapacity to his original back injury, and that there was no evidence of any subsequent injury. Id. at 288-289. In Sutherland's Case, 2 Mass. App. Ct. 58 (1974), the court also sustained an award against the first insurer, although the judge did not emphasize the minimal degree of causality necessary to shift liability to a later insurer, where the employee had never fully recovered from his surgery before returning to work and experienced gradually increasing pain over a three-and-one-half year period, and where there was a medical opinion relating the employee's ultimate disability to his original injury.
Here, the medical and lay evidence support the imposition of liability on the first insurer. The judge found that the employee suffered a compensable injury on December 12, 1995, consisting of a herniated disc at L2-3 and an exacerbation of his underlying degenerative condition and spinal stenosis. He further found that the industrial accident was "and remains" a major cause of the employee's medical disability and need for surgery. (Dec. 12.) Regarding the employee's return to work, the judge wrote:
I find that during January 1997, Mr. Dembitzski made a reasonable attempt to return to his normal occupation after he was given a conditional medical release by his treating physician, Dr. Poskanzer. I find this four-and-one-half-day period can best be described as an exploratory attempt to determine the extent of his ability to work. I find (as did Dr. Howard Gardner) that Mr. Dembitzski discovered "that there were aspects of his job that he was unable to carry out without experiencing significant increase in pain." Based on this statement of the Impartial Physician and after careful evaluation of the employee's testimony over the entire period of this extended Hearing, I find that no distinct work injury or exacerbation occurred while Mr. Dembitzski was employed by Pyramid Carpet Installation, Inc. I find that Mr. Dembitzski simply came to realize what his limitations were upon returning to his normal occupation. I find the increased restrictions that were placed on Mr. Dembitzski by Dr. Poskanzer after this attempted return to work were merely a more-precise formulation of his physical restrictions and some prudent precautions to prevent further injury, rather than being the result of any incident that was alleged to have occurred while in the service of that short-term employer. For this reason, I find that no industrial accident occurred during January 1997 and that the claim against Pyramid Carpet Installations, Inc., should be denied and dismissed.
(Dec. 14-15.) The judge also cited the § 11A doctor's statement that Mr. Dembitzski has "'residual symptomology [sic] which is exacerbated by lifting heavy objects or lifting in an awkward position.'"(Dec. 11, quoting Statutory Ex. 2, 3.) The judge concluded by adopting "the expert medical opinion . . . in all aspects." (Dec. 12.)
The two § 11A reports were the only medical evidence submitted. In the first report dated September 3, 1996, the physician indicated that the employee had suffered a ruptured lumbar disc at work on December 12, 1995 and that he had had surgery one month before the examination, with related symptomatology. (Stat. Ex. 1, 3.) In the second impartial report dated June 19, 1997, the doctor indicated that the employee was status post-laminectomy at L 2-3, and that he had "residual symptomatology which is exacerbated by lifting heavy objects or lifting in an awkward position." (Stat. Ex. 2, 3.) The physician continued that the employee "made a reasonable attempt at returning to work but found that there were aspects of his job that he was unable to carry out without experiencing significant increase in pain." Id. The doctor concluded that "[t]he ruptured lumbar disc was the result of his injury at work on or about December 12, 1995." Id.
There is no suggestion in the second medical report that, upon his return to work, the employee experienced a new injury, either as a result of a specific incident or a gradual accumulation of stresses. Rather, the medical evidence supports the inference, apparently drawn by the judge, that the employee experienced "residual symptomatology" from the work-related ruptured disc and consequent surgery, which resulted in a temporary exacerbation of his symptoms. (Dec. 11, 12.) Though not a model of clarity, and without the benefit of deposition testimony, the medical opinion supports the finding causally relating the employee's ongoing incapacity to the December 12, 1995 injury. See Smick v. South Central Mass. Rehabilitative Resources, Inc., 7 Mass. Workers' Comp. Rep. 84, 87 (1993) (while the medical evidence is at times equivocal, the doctor's testimony as a whole is sufficient to establish causal relation).
Moreover, the employee's testimony bolsters the medical evidence and further supports the conclusion that the employee did not suffer a re-injury during the few days he returned to work in January 1997. See Bedugnis v. Paul McGuire Chevrolet, 9 Mass. Workers' Comp. Rep. 801 (1995) (not only additional medical evidence, but lay testimony as well may be used to support an ambiguous medical opinion). Thus, both the medical and lay evidence sufficiently support the conclusion that the employee's incapacity after returning to work was the result of his original injury rather than any aggravation at Pyramid. Those findings are affirmed.
Mr. Dembitzski testified that during his physical therapy and work hardening, he had pain in his thigh and rear end. (November 5, 1997 Tr. 18, 21.) He further testified that he felt the same pain and soreness after returning to work at Pyramid as he had felt before his return to work. (November 5, 1997 Tr. 27-28, 36, 37.) The fact that the employee also testified on cross-examination that his work at Pyramid caused increased pain in his back which was still there at the conclusion of the job, and as a result of which he contacted Dr. Poskanzer for an appointment (December 8, 1997 Tr. 90), does not invalidate the judge's finding that the employee suffered no new injury, since the weight and credibility of the evidence are for the judge to determine. See Costa's Case, supra at 289; Broughton, supra at 563-564.
As to all other issues raised by Travelers, we summarily affirm the decision of the administrative judge. Because the issue of cancellation requires recommittal, we decline to rule on the Trust Fund's motion for dismissal. See Borstel's Case, 307 Mass. 24, 27 (1940) (claim by one insurer brought both insurers before the board as multi-insurer scenario is viewed as a single proceeding); Scotti v. Honywell/Loral Infrared Imaging Sys., 11 Mass. Workers' Comp. Rep. 333, 337 (1997) (case must recommitted with all necessary parties participating). In the interest of justice the judge may take such further evidence as is necessary to properly address the cancellation dispute.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________ Frederick E. Levine Administrative Law Judge
________________________ Martine Carroll Administrative Law Judge
Filed: