Opinion
BOARD No. 329-88
Filed: December 19, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
APPEARANCES
Alan S. Pierce, Esq., for the employee.
Patricia G. Noone, Esq., for the self-insurer.
The employee appeals from the decision of the administrative judge denying his claim for G.L.c. 152, § 28 double compensation and G.L.c. 152, § 7 loss of defenses. The employee contends that the decision was error as a matter of law because the judge applied the wrong legal standard in determining whether pursuant to § 28, the employer's action constituted "serious and wilful misconduct." He further contends that the insurer has lost its defenses by failing to notify the employee within fourteen days as specified by § 7. Finding no error, we affirm the decision of the administrative judge.
Prior to the filing of the claim for § 28 benefits in the instant case, the employee had filed for G.L.c. 152, § 34 total incapacity and § 35 partial incapacity benefits. (Dec. 3.) In a decision filed on September 3, 1991, and amended on October 30, 1991, a prior administrative judge found the insurer liable for a personal injury resulting from a series of events through January 24, 1984, and awarded the employee § 34 and § 35 incapacity benefits, and § 30 medical benefits. (Dec. 3, Ex. 3.)
Thereafter, the employee notified the Department of Revenue of his claim for § 28 double compensation. (Dec. 10.) He received a return receipt card dated February 3, 1992. (Dec. 10.) After a § 10A conference, held on September 21, 1992, the judge denied the employee's claim. (Dec. 3-4.) The employee filed a timely appeal, and a hearing de novo on the § 28 claim was held on February 11, 1993. (Dec. 4)
The administrative judge references Employee's Exhibit 2, which reflects the date of the return receipt card was actually February 3, 1992, rather than the date of February 3, 1993 set forth by the judge. (Dec. 2, 10.) This appears to be a scrivener's error and is harmless.
Among the issues at hearing were the employee's claim that a § 7 violation should result in loss of defenses, and the assertion by counsel for the Department of Revenue that the employee's claim for § 28 benefits was barred by res judicata.
In a decision filed on April 30, 1993, the administrative judge found that the employee was precluded by res judicata from filing his § 28 claim because the allegation of "serious and wilful misconduct" by the employer should have been adjudicated along with the employee's earlier claim for §§ 34 and 35 benefits. (Dec. 6-9.) The judge ruled that once the issues of liability, disability, and causal relationship were adjudicated and unless new facts are discovered that would excuse the employee for not bringing this claim earlier, the employee was barred from bringing a § 28 claim. Id.
The judge nonetheless discussed the case on its merits as if the res judicata bar had not been found. (Dec. 9.) She credited the employee's testimony and adopted the facts as testified to by the employee in so far as they matched the adopted factual findings of the prior judge. (Dec. 11, 12, 15-16; Ex. 3.) The judge found the employee, who began working as the assessing clerk for the Department of Revenue in 1971, developed psychological injuries due to his supervisors' conduct beginning in 1977 and culminating on January 24, 1984. (Dec. 12-14; Ex. 3, pp. 5-6.) The employee was hospitalized for two months beginning in January 1984 for treatment of anxiety attacks. (Dec. 14; Ex. 3.) In reviewing whether the events complained of met the requisites for a finding under § 28, the judge concluded that while the supervisor, Robert "Kelly exercised poor judgement(sic), I do not find that his conduct rose to the level of 'serious and wilful misconduct' as required" by § 28. (Dec. 19-20.)
Relying on Hepner's Case, 29 Mass. App. Ct. 208 (1990), the judge further held that the insurer was not barred by § 7 from raising defenses to this claim because the fourteen day response requirement in cases involving a state agency is not triggered by notice being sent to the employer, but only by notice to the Public Employee Retirement Administration (hereinafter "PERA"). (Dec. 10.)
The employee appeals this decision and raises three issues on appeal. First, he argues that his claim for § 28 double compensation is not barred by res judicata because this case involves different parties in a different claim. (Employee's Brief, 6-7.) Second, he contends that pursuant to § 7, unless notice of denial of payment is sent to the employee within fourteen days from the receipt of notice of injury, the insurer is prevented from raising defenses to his claim. (Employee's Brief, 10.) Third, the employee asserts that the administrative judge applied the wrong legal standard in determining "serious and wilful misconduct." Id. We shall address these issues in turn.
The effect of res judicata is limited to attach to matters explicitly determined in a final judgment on the merits. Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. 404, 406 (1994); Sargent's Case, 347 Mass. 250 (1964). The present claim for § 28 double compensation for the alleged "serious and wilful misconduct" of the employer is a separate and distinct claim involving different issues unrelated to the issue of liability for payment of weekly § 34 incapacity compensation. In Heredia v. Simmons Company, 10 Mass. Workers' Comp. Rep. ___ (May 31, 1996) (slip op. at 6), we noted long standing recognition of the right of employee claimants to assert separate and subsequent claims under the provisions of § 28.
There is no requirement under c. 152 that every issue arising from a work injury be finally determined in initial litigation. See G.L.c. 152, § 16. See Lichenstein v. Goodyear Tire and Rubber, 7 Mass. Workers' Comp. Rep. 33 (1993). We conclude that the employee is not precluded from seeking § 28 double compensation by res judicata because the previous litigation did not involve the "same claim" and because the doctrine does not foreclose employees from filing further claims once compensation has been paid. See § 16; Lichenstein v. Goodyear Tire and Rubber, supra.
General Laws c. 152, § 16 states in pertinent part:
When in any case before the department it appears that compensation has been paid or when in any case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law . . .
G.L.c. 152, § 16 (emphasis added).
We reverse on the judge's ruling that the employee is barred by res judicata. However, because the judge discussed the case on its merits and made a finding of fact based on her subsidiary findings that the case presented did not rise to the level of serious and wilfull misconduct, we find the error of law here to be harmless error.
The employee next contends that the judge erred in allowing the employer to raise defenses pursuant to § 7 against the claim for double compensation. (Employee's Brief, 10.) He argues that the notice of injury, sent to the employer, satisfies the employee's obligation required under § 7. He argues the insurer was then obligated to reply within the prescribed fourteen days or pay the G.L.c. 152, § 7(2) penalty of $200.00, and that the insurer's failure to do so bars it from now raising any defenses against the employee's claim for § 28 double compensation. Id. We find no error.
General Laws c. 152, § 7, as amended by St. 1991, c. 398, § 20, provides, in pertinent part:
Within fourteen days of an insurer's receipt of an employer's first report of injury . . . the insurer shall either commence payment of weekly benfits . . . or shall notify . . . the employee, of its refusal to commence payment of said benefits. . . .
G.L.c. 152, § 7 (emphasis added).
Penalties under § 7 do apply to the Commonwealth. SeeHepner's Case, 29 Mass. App. Ct. 208, 213 (1990). When a claim involves a subdivision of the Commonwealth of Massachusetts, the fourteen day obligation to respond pursuant to § 7 is triggered only when the Public Employee Retirement Administration (PERA), which functions like an insurer, receives notice. Id. at 214. Here, the judge found that the employee only sent the notice of claim to the employer, and the judge found nothing to demonstrate that PERA received notice. (Dec. 12, 19.). Without such evidence, the fourteen day response was not triggered, and the insurer's defenses not foreclosed. We affirm the judge in this regard.
The court in Hepner's Case, 29 Mass. App. Ct. 208, 212, 213 (1990) found the Commonwealth could be subject to penalties under both § 6 and § 7.
Finally, the employee contends that the administrative judge applied the wrong legal standard in determining "serious and wilful misconduct" pursuant to § 28. He contends that there are two different standards under § 28, and argues that the judge erred to apply a "quasi criminal" standard where no physical injury is involved, and that a "wanton disregard" standard should be used for psychological injuries. (Employee's Brief, 10.)
General Laws c. 152, § 28 states, in pertinent part:
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. . . .
We find no merit in these contentions. In determining "serious and wilful misconduct," both the "quasi criminal" and "wanton disregard" standard lead to the same result. Smith v. Raytheon, 9 Mass. Workers' Comp. Rep. 477, 482 (1995). The definition of recklessness, whether in tort, criminal law, or workers' compensation, is based upon Restatement (Second) of Torts. Id. at 482. Because the same definition is used for recklessness, any differences in the "quasi criminal" or "wanton disregard" standard of "serious and wilful misconduct" is negligible.Id. Nor is there any legal basis for the contention that § 28 sets a different standard for psychological injuries than for physical injuries. The administrative judge applied the appropriate standard in determining liability pursuant to § 28.
Restatement (Second) of Torts § 500 states:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Accordingly, we reverse on the issue of res judicata and hold that an employee may, subsequent to proceedings on original liability, assert his claim for § 28 double compensation. However, the administrative judge's ruling is harmless error because she discussed the case on the merits as if no res judicata effect was found. We affirm the administrative judge's ruling that the insurer was not barred from raising defenses to the employee's § 28 claim. We find the judge applied the correct standard in determining whether the actions of the employer constituted "serious and wilful misconduct". So ordered.
____________________________________ Carolynn N. Fischel Administrative Law Judge
____________________________________ Edward P. Kirby Administrative Law Judge
____________________________________ Sara H. Wilson Administrative Law Judge
Filed: December 19, 1996