Opinion
No. 11–P–1205. 11–P–1205
2012-06-12
Mark FENTON'S CASE.
By the Court (GRAHAM, GRAINGER & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The claimant, Mark Fenton, was a custodian for King Philip Regional School District (employer). He suffered a heart attack while at work on June 17, 1997; he was taken by ambulance directly to the hospital from his workplace.
The record indicates that on July 1, 1997, the claimant received a notice from his employer's workers' compensation insurer denying benefits for the injury in part because there was insufficient evidence to prove that the claimed injury arose out of, or was caused by, his employment.
The record indicates that the claimant suffered an earlier heart attack while on vacation in 1995.
In the same notice was the warning, “Should you decide to file a claim for benefits, you must do so within the time limits provided under [G.L. c.] 152.” Apparently, no appeal was filed.
Apparently, no claim for workers' compensation was actually filed in 1997. See note 4, infra.
When the claimant retired in June, 2008, he filed a claim for workers' compensation benefits for the 1997 workplace heart attack. At the beginning of the de novo hearing before the administrative judge, the insurer moved for dismissal of the claimant's claim, contending that it was time-barred. Pursuant to the language of c. 152, an employee cannot pursue a claim for disability benefits “unless [the] claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment.” G.L. c. 152, § 41, as appearing in St.1985, c. 572, § 50. See Sullivan's Case, 76 Mass.App.Ct. 26, 31 (2009). The hearing was bifurcated to allow the claimant “to present evidence solely on the question of the insurer's § 41 claim for dismissal for failure to file a claim timely.”
Instead, the claimant used sick-time benefits from his employer during his recuperation and submitted his medical bills directly to his health insurance provider for payment.
The administrative judge found that the § 41 four-year statute of limitations began to run on June 17, 1997; she found “unconvincing[ ]” the claimant's argument that he did not know of the causal relationship between his heart attack and his employment until June 16, 2008, when he was examined by a cardiologist, Dr. Harvey Clermont, to whom he was referred by his attorney.
At the hearing, the parties stipulated that the June 25, 2008, claim was the only one filed by the claimant, and that no compensation had been paid on this claim.
On appeal to the reviewing board of the Department of Industrial Accidents (board), the claimant argued that the administrative judge erroneously dismissed his claim based on the assumption that the claimant's cardiologist would have discussed the cause of his heart attack “well within a four year time frame”; the claimant also challenged the judge's conclusion that the medical treatment sought “following his heart attack at work commenced the four year statute of limitations on his claim.” While the board agreed with these arguments on appeal, the board nevertheless affirmed the judge's decision, holding that her errors were harmless.
The board concluded that the claimant's claim “ultimately turns on who has the burden of proof.” We agree.
The board concluded that the administrative judge's reliance upon the board's decision in Sullivan v. St. Joseph's Parish, 21 Mass. Workers' Comp. Rep. 263 (2007), was flawed, in part because she “did not have the benefit of the Appeals Court's decision in Sullivan's Case at the time she filed her decision in [the claimant's] case.” Sullivan's Case overturned the “per se rule that any visit to a doctor after a work-related injury starts the period of the statute of limitations.” Sullivan's Case, 76 Mass.App.Ct. at 32 n. 12.
Once the insurer raised the statute of limitations as a basis for dismissal, and established that the claimant's claim was brought nearly eleven years after the injury, “the burden of proving facts that take the case outside the statute of limitations [fell] to the [claimant].” Silvestris v. Tantasqua Regional Sch. Dist., 446 Mass. 756, 766–767 (2006). The claimant, therefore, was required to offer evidence that he did not become aware of the causal link between his heart attack and his employment until sometime within four years prior to his June 25, 2008, claim for benefits. Based upon the claimant's live testimony and the evidence presented at the hearing, the administrative judge found that the claimant failed to do so. “Such credibility determinations are within the sole province of an administrative judge and are to be considered final by both the reviewing board and an appellate court.” Carpenter's Case, 456 Mass. 436, 441 (2010). The claim was properly dismissed.
Decision of reviewing board affirmed.