Opinion
14-P-514
09-08-2015
PETER SVENSON'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The insurer, Electric Insurance Company (insurer), appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), upholding a decision by the administrative judge and finding, among other things, that the employee, Peter Svenson (Svenson), was injured by reason of the serious and wilful misconduct of a supervisor employed by the General Electric Company (company), warranting double compensation benefits pursuant to G. L. c. 152, § 28. We affirm.
Background. Svenson worked for the company for more than thirty-eight years; at the time of the incident relevant to this claim, Svenson was a Level I X-ray technician (or "shooter") in the radiography department in the Lynn manufacturing facility. The shooters generated X-rays to search for defects in the materials. Frederick Hammond (a company employee for twenty-five years) was a Level II inspector, also in radiography. Hammond's primary responsibility was to supervise the work of the shooters, inspecting the X-rays they generated; Svenson regularly worked with Hammond. If Hammond found a problem with an X-ray, he had the authority to send it back to the shooter and to provide supervision and guidance about what was wrong and how to correct it. In addition, if Hammond had an issue with the work of a particular shooter, he had the authority to bring his concern to his cell leader, Bob Hoffman, a Level III supervisor.
On June 10, 2009, Hammond was working in his office when Hoffman and Svenson came to discuss a complaint that Hammond had raised about certain choices Svenson had made in one of his X-rays. After looking at the disputed X-ray, Hoffman handed it back to Hammond telling him the X-ray was "okay" the way Svenson had done it. Hoffman and Svenson left Hammond's office; Svenson returned alone to Hammond's office a short time later, questioning Hammond as to what specifically about Svenson's work he was challenging so that Svenson could "get a handle on what [was] it that [he was] doing wrong." Hammond responded that it was merely a "technicality" and that he was sick of talking to Svenson and no longer "want[ed] to talk about it."
Hammond then told Svenson to get out of his office; when Svenson refused, Hammond "jumped up out of his seat, rather angry, and mumbled some more words and started to storm on by [Svenson] as if he was leaving and going out of the office." Svenson followed him out and was heading back to his work area. At the time, Hammond appeared to be leaving the office area, but then came back and the two men began to argue, moving "belly to belly." Hammond then grabbed Svenson with both hands by the shirt and shoved him into the wall. He started punching Svenson in the face (in the teeth and both eyes); Hammond "put all [his] weight on [Svenson] and rode him right down onto the ground" where Svenson hit the back of his head on the concrete floor. Hammond then grabbed Svenson by the throat, choking him; he continued punching Svenson until the union steward came and pulled Hammond off.
Hammond denied he ever punched Svenson, testifying that Svenson got the scrapes and blood on his face when Hammond put all his weight on him. Two other employees, Brian Mahoney and Gary McNeil, arrived at the scene after the altercation; both stated that Svenson looked as if he had been "punched in the face" and "like he got beat up."
As a result of the altercation, both men were suspended. Afterwards, Svenson was unable to return to work at the company, and was subsequently diagnosed with major depression and posttraumatic stress disorder as a result of the incident. Hammond retired rather than risk termination while awaiting the outcome of the company's investigation. Svenson's initial claim for workers' compensation benefits was denied. After his request for reconsideration and rehearing, the administrative judge ordered payment of benefits pursuant to G. L. c. 152, § 34, at a rate of $600 per week from June 11, 2009, and continuing; the insurer appealed. Over the insurer's objection, Svenson was permitted to add a § 28 claim. After a de novo appeal hearing, the judge ordered the insurer to pay Svenson § 34 weekly benefits in the amount of $1,064.84, interest due under § 50, payment of §§ 13 and 30 medical benefits, double compensation under § 28, and additional legal fees to Svenson's attorney in the amount of $15,000, plus expenses.
Following a union grievance filed on his behalf challenging an unjust suspension, Svenson's employee record was expunged of any mention of the incident.
The judge found credible the opinion of the testifying medical experts, the "truthful" testimony of employees Mahoney and McNeil, and Svenson's account of what had occurred on June 10, 2009; the judge did not credit Hammond's version. In addition, in finding that double compensation was warranted, the judge determined that Hammond was not merely a "quality control inspector" but rather was a "person regularly entrusted with the powers of superintendence" over Svenson.
In so deciding, the judge relied on Svenson's testimony, as well as Hammond's, relating to the supervisory hierarchy of company employees. Hammond agreed that he had supervisory authority to address with Hoffman his concerns regarding Svenson's work; he also had the authority to exercise the necessary instruction and supervision of Svenson's work, including the ability to reject it. In addition, the judge cited testimony by Frank Robinson (another Level I shooter), that Level II employees had some supervisory authority over the shooters. Finally, the company's written practice and procedure manual instructed that a Level II inspector provide "necessary instruction and supervision" to Level I employees. As a result, the judge concluded that Hammond had "powers of superintendence."
On October 30, 2013, the board affirmed the administrative judge's decision, concluding that there was no error in her findings on the issue of superintendence, among others, and that, because the findings were derived from the evidence and inferences drawn therefrom, they were not arbitrary or capricious.
Discussion. The insurer limits its appellate argument to the award of double compensation under G. L. c. § 28. To recover double compensation under § 28, a claimant must establish, by a preponderance of the evidence, "that (1) an employee or supervisor (2) committed serious and wilful misconduct that (3) caused the employee's injury." Moss's Case, 451 Mass. 704, 711-712 (2008). Here, the insurer challenges only whether Hammond exercised powers of superintendence over Svenson, arguing that Hammond was not Svenson's supervisor, and that Hammond's "supervision" of Level I shooters was merely limited to quality control of the product. In the insurer's view, Hammond and Svenson were coworkers whose work process depended on one another, but the interdependence did not include the exercise of control by one over the other.
Section 28 provides that: "If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled."
The testimony of the company employees, including Hammond, regarding the supervisory hierarchy in the radiography department, which the judge found credible, also was corroborated by the company's own written practice and procedure manual. We are satisfied that the judge reasonably could conclude that Hammond exercised supervisory authority over Svenson. In his position as a Level II inspector, Hammond had the power of "direction or oversight, tending to control others and to vary their situation or action because of his direction." Thayer's Case, 345 Mass. 36, 40 (1962) (quotation omitted). "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).
In addition, the board found, as it was permitted to do, that the judge's decision was not "beyond the scope of [her] authority, arbitrary or capricious, or contrary to law." G. L. c. 152, § 11C. We do not reverse the board's affirmance of the judge's decision unless it is lacking in evidentiary support or a different conclusion is required as a matter of law. See MacDonnell's Case, 82 Mass. App. Ct. 196, 198 (2012). We see neither.
We agree with the board, and its analysis, that the insurer's reliance on Thayer is misplaced. See Thayer's Case, supra.
Decision of Reviewing Board affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 8, 2015.