Opinion
BOARD No. 01827190
Filed: December 22, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Edward J. Musco, Esq., for the employee
Richard W. McLeod, Esq., for the insurer
John C. Sullivan, Esq. for the employer
The insurer and employer appeal a decision which found employer misconduct and awarded § 28 benefits to the employee, who has been paralyzed as a result of an industrial injury on March 29, 1990, when he somersaulted from an unsecured eighteen foot ladder and landed on his head and neck. (Dec. 9.)
The decision below misnamed the employee as "Luis Aquinaldo." (Dec. 1, 3) The employee's correct name is Aquinaldo Luis.
At the insurer's and employer's urging and pursuant to our scope of review under c. 152, § 11C, we review whether the judge applied correct principles of law in making his § 28 determination. Smith v. Raytheon, 9 Mass. Workers' Comp. Rep. ___ (filed August 18, 1995); Nelson v. Avco Corp., 8 Mass. Workers' Comp. ___ (1994); see Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993). Because the journey from fact finding to questions of law in a § 28 case involves subtle gradations rather than any rigid divide, the tenability of the ultimate finding on § 28 issues depends upon whether correct rules of law were applied to the facts found. See DiClavio's Case, 293 Mass. 259, 261-262 (1936). Further, a judge's findings of fact are conclusive if there is evidence to support them. Albanese's Case, 378 Mass. 14,15 n. 2 (1979), Martine v. N.E. Telephone Telegraph Co., 1 Mass. Workers' Comp. Rep. 351, 353 (1988). We conclude that the decision is firmly grounded in the evidence and that the law was correctly applied to the facts found in determining that a § 28 violation had occurred.
We have recently summarized the elements that must be met to prevail on a claim of employer misconduct. First, there must be:
a) either an employer, or
b) any person;
i) regularly entrusted with the powers of superintendence who;
ii) was exercising superintendence when the injurious misconduct occurred.
Next, the conduct for a § 28 finding is met when an employer or superintending individual:
a. does, or fails to do an act that he, or a reasonable person would, know, or
b. have reason to know
c. will create an unreasonably high risk of bodily harm that involves
d. a high degree of probability that substantial harm will result.
Smith v. Raytheon, supra. See also Restatement (Second) of Torts § 500 (1965); Scaia's Case, 320 Mass. 432, 434 (1946); O'Leary's Case, 367 Mass. 108, 116 (1975).
We examine whether the decision reflects consideration of these elements necessary to a § 28 finding. The judge set forth detailed subsidiary findings, and then made the following findings:
Billy Adaire was regularly entrusted by Merrimack's management with the job of seeing that the company's work was done. His immediate supervisor told Billy what jobs needed attention. It was up to him, in the exercise of his discretion, to determine how the work would get done. He chose equipment and supplies to take to the sites. He drove the company's van and assigned his men to the jobs for which he and the crew were responsible.
Billy Adaire was a roofing mechanic and his men were laborers. He knew the trade, its rules, and its inherent dangers. On the day of the employee's injury he knew well the jobs to which his crew had been assigned. He knew the ladders which would be required for these jobs. He knew that one of his ladders was too short. He knew that if he waited ten to fifteen minutes he could safely gain access to the roof via a hatchway. He knew safety standards. He knew that a metal ladder on a metal wall was dangerous. He knew that a short ladder was dangerous. He knew that not tying off a ladder was dangerous. He knew, or should have known, that he had conveyed to his men a sense of urgency relative to the job's completion; and he knew, or should have foreseen, it likely that others would use the ladder and expose themselves to injury.
The employees of Merrimack Valley Roofing worked in an atmosphere which placed a premium on getting the job done, but not one on worker safety. The employee had been demeaned by a company supervisor on one occasion when he expressed concerns about using an unsafe ladder. Neither he nor Billy Adaire had been instructed in any meaningful way by Merrimack about the importance of adhering to state, federal, and industry safety standards. As a result, the perspective needed to balance the competing demands of job completion and worker safety at the job site, and which could have averted this most foreseeable injury, was lacking. (Dec. 10-11.)
Based on these findings, the administrative judge ordered "[t]hat the insurer double the benefits payable to the employee pursuant to the provisions of Chapter 152 of the General Laws" in accordance with § 28. (Dec. 11.)
At the outset, the insurer and employer take issue with the judge's finding that Adaire was a person regularly entrusted with and exercising powers of superintendence. They argue the record fails to support a finding of superintendence. We disagree.
The concept of "superintendence" within the meaning of § 28 has been well defined by the courts. In Thayer's Case, 345 Mass. 36 (1962) the Court made clear that superintendence was the act of "direction or of oversight, tending to control others and to vary their situation or action because of his direction." Id. at 40. Later, the Court in O'Leary's Case, 367 Mass. 108 (1975), defined "regularly" entrusted superintendence thusly:
[T]he word is simply designed to distinguish between a mere fellow worker who occasionally acts in a limited supervisory capacity and a person who is officially designated by the employer as the person in charge of a particular facet of the employer's business and who is actually engaged in a supervisory capacity at the time of the employee's injury. . . . ["Regularly" is] intended to differentiate between a mere volunteer and one actually designated by the employer as a superintendent. Continuity of service in the capacity of superintendent is not required. Id. at 114-15.
The judge's finding in this regard was warranted. Adaire's role as a person to whom the employer regularly delegated the responsibility to carry out the company's assignments, as well as his actual supervisory role when the accident took place, is well supported by the record. (May 24, 1993 Tr. [Tr. I] 29-30, 36, 45-51, 72-74, 83-84; May 25, 1993 Tr. [Tr. II] 64-65, 86) There is no error.
The insurer and employer secondarily argue that the evidence is insufficient to support a finding that the supervisor's conduct met the requirements of the § 28 standard. Again, we disagree. The findings were consistent with each of the elements necessary to meet the standard of misconduct under § 28, namely that: 1) Adaire intentionally set up the ladder; and 2) set it up in a hazardous manner; and that 3) Adaire knew that the employee would use the unsafe ladder and thus should have known he would thereby be exposed to an unreasonable risk of substantial bodily harm, since a) Adaire had impressed upon the employees that he wanted to finish the job quickly, b) he had used the ladder himself in that unsafe condition, and c) the use of the ladder violated safety standards, which standards the employer generally held in low regard. (Dec. 8-10) These findings reflect the elements of a reckless disregard of safety as stated in Smith v. Raytheon, supra.
There is evidence upon which the above findings are based that Adaire knowingly set up the ladder in such a way that it was unsafe, use of which involved a high degree of probability of substantial bodily harm. (Dec. 8, 10; Tr. I 26, 57-58, 65, 70) There is evidentiary support for the finding that Adaire knew that the employee would use the unsafely placed ladder. (Dec. 10; Tr. I 62) Once the judge found Adaire's actual knowledge of the employee's imminent use of the ladder, with the attendant high degree of probability of substantial bodily harm, the judge had already found the facts requisite to § 28 liability. However, the judge also addressed the second test of § 28 liability, that of what Adaire had "reason to know," i.e. what he should have known. See Smith v. Raytheon, supra. There was evidentiary support for the finding that Adaire should have known that the employee would come up the ladder, based on the fact that there was no other access to the roof, and he had indicated to the employees that he wanted to get the job done quickly. (Dec. 10; Tr. I 63-64, 79, Tr. II 43-45, 55, 113) The judge then drew the rational inference about what supervisor Adaire should have known regarding the risk of grave bodily harm, given the fact that Adaire knew that he had set the ladder unsafely and that he knew the employee would climb it. Reasonable inferences drawn from evidence on the record cannot be disturbed. As we stated in Lussier v. ATF Davidson, 8 Mass. Workers' Comp. Rep. 344 (1994),
The judge found that Adaire set up the extension ladder that fell two feet below the roof line and rested against the building's metal side, presenting a known danger of sliding. (Dec. 8.) The judge found that Adaire knowingly failed to use a ladder that extended at least three feet above the roof edge, and failed to securely tie off the top of the ladder at the roof, in violation of roofing industry standards as well as regulations promulgated by the Occupational Safety and Health Administration and the Commonwealth of Massachusetts. (Dec. 8.) Regarding the set up of the ladder, Adaire admitted that, "I knew it wasn't set up properly[,]" and, as a result, "I understand there could have been an injury." (Tr. I 65, 26)
The evidence that Adaire actually knew of the risk to which the employee was about to subject himself was introduced through Adaire's own deposition testimony. At the hearing, Adaire first testified as follows:
Q: So then you went up the ladder?
A: Yes, I went up the ladder myself.
Q: Now, did you expect [the employee] to go up that ladder, or [the co-worker] to go up that ladder at that time?
A: I expected no one to go up that ladder.
(Tr. I 60) Then Adaire was asked to read the following excerpt from his deposition into the record:
Q: Would you read for His Honor, question and answer starting at line ten. What's the question?
A: What was your impression, or your thoughts as to how they [the employee and the co-worker] were going to get up on the roof?
Q: Your answer?
A: They were going to come up the ladder.
(Tr. I 62) This statement could be considered for all purposes, not just impeachment, as a statement of a party opponent. See Liacos, Handbook of Massachusetts Evidence, 6th Ed. (1994), § 8.8.1.
The insurer and employer seem to contend that we should weigh the evidence otherwise, to find that Adaire was reasonable in his alleged failure to realize that the employee probably would follow him up the ladder. This argument is "predicated on the mistaken premise that this [Board] can make its own independent finding of fact." Lovasco's Case, 4 Mass. App. Ct. 854, 855 (1976). Beside the fact that the judge's findings are based on the testimony of live witnesses, whose credibility is entirely the judge's to assess, the ability of this board to weigh evidence was removed by St. 1991, c. 398, § 31, which amended § 11C.
The reviewing board, after all, scrutinizes only an impersonal, printed record. The courtroom judge, on the other hand, enjoys a considerable advantage in the ability to determine the value and meaning of live testimony through a multi-sensory assessment of demeanor and the nuance of speech. Thus, the appropriately limited question before us is "whether there is any evidence including all rational inferences of which the evidence is susceptible, upon which the findings of the [administrative judge] could have been made, and if there is such evidence, we do not disturb the findings unless they are vitiated by some error of law. Id. at 348, citing Buck's Case, 342 Mass. 766, 769-770 (1961).
The record here provides a firm foundation for the finding that the actions of superintendent Adaire ran amuck of the § 28 standard of employer misconduct in that he knew or should have known that his conduct would create a high degree of probability of resultant substantial bodily harm. (Dec. 10.)
The judge found that the ladder had been used in disregard of safety standards. (Dec. 8-10; Tr. I 19-20) The presence or absence of violated safety rules are evidence entitled to weight, but are not essential to or alone dispositive of a finding of § 28. Smith v. Raytheon, supra; see alsoArmstrong's Case, 19 Mass. App. Ct. 147, 150 (1984). Beyond the safety violation regarding the ladder itself, the judge found a general lack of concern for safety prevailed at Merrimack Valley Roofing. (Dec. 9-11) There was evidence in the record to support the finding, which, again, is not alone dispositive, but can support the legal conclusion that § 28 had been violated. (Tr. I, 30-32, Tr. II 21-29, 53-54, 70-74, 109-110)
Finally, the insurer and the employer assert that for § 28 liability to attach there would have had to have been an affirmative order to the employee to climb the ladder, and that the sense of urgency the judge found the supervisor conveyed was insufficient to meet the § 28 standard. As the Appeals Court stated in Armstrong's Case, 19 Mass. App. Ct. 147, 150, n. 5 (1984): "We interpret the word 'ordered' [as used by the administrative judge in his § 28 findings] as meaning no more than that [the employee] was assigned by his foreman to that dangerous task during which he was injured." (Emphasis added.) Reviewing board cases interpreting § 28 have imposed no greater a requirement. See Hanson v.L.G. Balfour, 6 Mass. Workers' Comp. Rep. 56 (1992); Morico v. Mutual Produce, 1 Mass. Workers' Comp. Rep. 388, 389 (1988). The scope of the task which the instant employee was assigned to perform clearly involved his climbing up to the roof. The act of scaling the ladder was a foreseeable part of the employee's job on the injury date. The degree of requirement that the task be performed augmented by a finding of urgency, was legally adequate to support this aspect of the § 28 finding. We decline to follow a narrower path with regard to an employer's "order" than that established by the cited cases.
Morely, a co-employee, testified that at the jobsite Adaire said "the super will open the door for the hatch [to the roof] in ten minutes, but we do not have ten minutes. . . ." (Tr. II 45) The employee testified that en route to the jobsite Adaire told him "[w]e are going to get out of here so we can go home early." (Tr. II 113) At the time of injury, Morely had "jumped in the van" to grab materials needed for the job. (Tr. II 55)
On appeal the employer seeks to raise § 27, which issue was not raised below. Therefore, it is deemed waived and we do not address it here. As to the § 28 finding itself, the judge ably interwove the totality of well supported factual findings with the standard required to reach an affirmative ruling of employer misconduct.
Decision affirmed.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 22, 1995