Opinion
19-P-1297
06-11-2021
Em Enid D'SYLVIA'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this workers' compensation case, an administrative judge of the Department of Industrial Accidents (DIA) awarded the employee, Em Enid D'Sylvia, certain compensation benefits for a work-related injury. The uninsured employer, Alisande Cunningham Sweeney, doing business as Juniper Hill Farm (Sweeney), appeals from a decision of the reviewing board of the DIA (board) affirming the award. She contends that the board erred by declining to consider her argument that D'Sylvia did not qualify for workers' compensation benefits under G. L. c. 152, § 1 (4), because she failed to raise this issue at the hearing before the administrative judge. Sweeney also contends that D'Sylvia's injuries did not arise out of or during the course of her employment, and that the board erred by concluding that the improper impeachment of a witness called by D'Sylvia at the hearing constituted harmless error. We affirm.
D'Sylvia originally filed the claim against the Massachusetts Workers' Compensation Trust Fund (WCTF) because Sweeney was uninsured on the date of the injury. The WCTF appealed the administrative judge's decision to the board, but reached a settlement with D'Sylvia while the appeal was pending.
Background. We summarize the relevant facts found by the administrative judge and later adopted by the board. See Carpenter's Case, 456 Mass. 436, 438 (2010). In December 2012, D'Sylvia, a licensed practical nurse, was hired by Sweeney to provide personal care for her elderly mother. The initial agreement was for D'Sylvia to work two hours a day in exchange for room and board. However, D'Sylvia also was required to perform various domestic tasks, including cleaning, washing dishes, and taking out the garbage. In addition, D'Sylvia occasionally did some secretarial work. D'Sylvia understood that if she worked more than two hours a day she would receive additional compensation, but she was never paid for her extra work.
We note that this case has a complicated procedural history; however, because nothing turns on the history of the case we need not summarize it here.
On January 29, 2013, at approximately 11:30 P.M. , D'Sylvia had been cleaning her room and was taking her garbage outside when she slipped on ice and fell down a set of stairs. D'Sylvia injured her back and neck and was transported to Cooley Dickinson Hospital. D'Sylvia was unable to work after the accident. She continued to live at the farm for about a week and then moved out.
The administrative judge found that, on the date of the injury, D'Sylvia was employed by Sweeney as a domestic servant and that she worked between thirty and forty hours per week. The judge further determined that the injury arose out of and in the course of D'Sylvia's employment. In reaching her conclusion, the judge specifically credited D'Sylvia's testimony regarding the hours she worked and the terms of her employment. The judge rejected as not credible contrary testimony provided by other witnesses, including Kelly Jepson, who was the farm manager and primary caretaker of Sweeney's mother.
Jepson testified that D'Sylvia's only responsibility was to watch Sweeney's mother for two hours a day and that he had terminated D'Sylvia's employment after three days. Two additional witnesses, both of whom lived on the farm, each testified that they had not seen D'Sylvia perform any work for Sweeney after her third day at the farm.
As noted, Sweeney appealed the award of benefits to the board. She argued that G. L. c. 152, § 1 (4), barred an award of compensation benefits because D'Sylvia was a part-time domestic servant who worked less than sixteen hours per week. The board determined, after a detailed review of the record, that Sweeney had not raised this argument "at any time at the hearing or in filings made prior to the date of the decision." Concluding that the issue was raised for the first time on appeal, the board determined that Sweeney had waived the argument. The board also rejected Sweeney's argument that the order of compensation should be vacated because the administrative judge erred by permitting D'Sylvia's counsel to impeach Jepson, whom he had called as a witness, by questioning Jepson about an alleged confrontation with another employee at the farm. The board acknowledged that such impeachment of D'Sylvia's own witness was improper, but concluded that the error was harmless. As the board explained, the issue of Jepson's credibility was not relevant because the only issue before the administrative judge was whether D'Sylvia had an employment relationship with Sweeney on the date of her injury, and in her appeal Sweeney conceded that D'Sylvia was an employee who worked fourteen hours per week.
General Laws c. 152, § 1 (4), provides, in relevant part:
"The provisions of this chapter shall remain elective as to employers of seasonal or casual or part-time domestic servants. For the purpose of this paragraph, a part-time domestic servant is one who works in the employ of the employer less than sixteen hours per week."
The board also rejected Sweeney's claim that her attorney did not have a meaningful opportunity to challenge the lump sum agreement between D'Sylvia and the WCTF, and thus she was denied due process. However, Sweeney has not pursued this argument on appeal.
Discussion. "We examine the reviewing board's decision pursuant to the standards of G. L. c. 30A, § 14 (7)." Wright's Case, 486 Mass. 98, 107 (2020). "Under § 14 (7), [w]e may reverse or modify the board's decision where, among other reasons, it is based on an error of law, or is arbitrary, capricious, or otherwise not in accordance with law" (quotation and citation omitted). Id.
There is no question that Sweeney was required to raise all arguments before the administrative judge in order to preserve them. See Phillips's Case, 41 Mass. App. Ct. 612, 619 (1996) ("nothing ... requires the board to decide issues not previously raised before the [administrative] judge"); Collins's Case, 21 Mass. App. Ct. 557, 557 n.1 (1986) (issues not raised before board are not preserved for review by appellate court). Because Sweeney did not specifically argue before the administrative judge that D'Sylvia was not entitled to compensation because she was a domestic servant who worked less than sixteen hours per week, the issue was waived and the board was not required to consider it. Phillips's Case, supra.
Sweeney's argument that the issue is not waived because the question whether D'Sylvia qualifies for compensation under G. L. c. 152, § 1 (4), is jurisdictional and, as such, can be raised at any time, is unavailing. The inquiry whether an employee works for an employer for more or less than sixteen hours a week is a question of fact to be resolved by the administrative judge. See Madariaga's Case, 19 Mass. App. Ct. 477, 481 (1985). Here, the judge resolved that factual dispute in favor of D'Sylvia.
Nor are we persuaded that the question at issue was preserved because the evidence "overwhelmingly" demonstrated that D'Sylvia worked fewer than sixteen hours per week. This argument fails for the same reason -- the administrative judge specifically found, based on her assessment of the witnesses' credibility, that D'Sylvia worked between thirty and forty hours per week.
We also reject Sweeney's argument that D'Sylvia's injuries did not arise out of or during the course of her employment. This issue too is waived, as Sweeney did not raise it before the board. See Gaines's Case, 98 Mass. App. Ct. 205, 208 (2020). In any event, the administrative judge specifically found that D'Sylvia's duties on the farm included household chores such as cleaning, which she sometimes did past 10 P.M. The judge found that D'Sylvia was tidying her room, where she lived as part of her employment, and taking out the garbage when the accident occurred. These facts support the conclusion of the administrative judge that the injuries arose out of and in the course of D'Sylvia's employment.
Finally, Sweeney argues that the board erred in not vacating the award on the ground that the administrative judge improperly permitted D'Sylvia to impeach her own witness. See G. L. c. 233, § 23 ("The party who produces a witness shall not impeach his credit by evidence of bad character"). Although we agree that the impeachment was improper, we discern no error in the board's conclusion. As the board correctly observed, Sweeney ultimately conceded that D'Sylvia was employed at the time of the accident. As a result, Jepson's testimony was inconsequential.
The decision of the board is affirmed.
So ordered.
Affirmed