Opinion
BOARD No. 01177894
Filed: May 18, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel).
APPEARANCES
Herbert D. Lewis, Esq., for the Employee.
Elizabeth R. Lewis, Esq., for the Employee.
Robert P. Snell, Esq., for the Insurer.
Martin B. Schneider, Esq., for the Employer.
The employee appeals portions of the decision of an administrative judge which (1) imposed § 14(1) penalties based on a finding that the employee's § 28 claim was filed without reasonable grounds; (2) discontinued his weekly compensation benefits retroactive to a date prior to the date of the insurer's filing of a complaint to discontinue benefits; and (3) assigned the employee an earning capacity greater than that for which the employer/insurer had argued in their closing argument. After review of the record, we reverse in part and affirm in part.
The employee, who was thirty-six years old at the time of the decision, worked for the employer, a manufacturer of walk-in coolers and freezers, (Ins. Exh. 3), as an "installer" for approximately a week when, on April 20, 1994, he lacerated his right, non-dominant hand on a table saw. The blade guard had been removed from this saw by another employee of the company in the presence of the shop foreman. (Dec. 6, 7, 15.) The employee subsequently had a number of major surgeries to his hand. (Dec. 8, 20.)
The insurer paid the employee § 34 temporary total incapacity benefits without prejudice; the payment without prejudice period was extended to April 10, 1995. The insurer continued to pay the employee § 34 benefits after the expiration of the agreement, thereby accepting liability for the case. In May 1994, the employee filed a claim for § 28 benefits, alleging serious and willful misconduct by the employer in failing to have a blade guard attached to the table saw. Following a conference on November 14, 1994, the administrative judge denied the employee's § 28 claim. By amended order dated December 2, 1994, the judge also joined and denied the insurer's claims that the employee was injured by reason of his own serious and willful misconduct under § 27 and that the employee had engaged in illegal or fraudulent conduct under § 14(2) of the Act. The employee and insurer appealed, and subsequently, the judge allowed the insurer's motion to join a complaint to discontinue benefits to the pending claim and to file a late appeal of the conference order.
General Laws c. 152, § 28, in pertinent part:
If the employee is injured by reason of the serious and willful misconduct of an employer or any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation . . . shall be doubled.
The insurer had attempted to file a complaint to discontinue benefits on or about April 17, 1995, but that complaint was rejected due to the pending claim before the Board.
There appeared to be no dispute that, as the employee alleged, in the presence of the shop foreman, who was also the employee's immediate supervisor, another employee had removed the blade guard from the table saw the morning of the employee's accident. (Dec. 15-16.) However, the judge found that the employee, by misrepresenting his prior work experience, led the employer to believe that he had the skills in use of the usual equipment involved in performing carpentry and sheet metal work when, in fact, he did not. (Dec. 10, 18, 25.) The employee's misrepresentations, the judge found, prevented anyone with the power to supervise the employee, including the shop foreman, from knowing that the employee, by virtue of his inexperience, might be in danger of seriously injuring himself on the table saw with the absent blade guard. (Dec. 19, 25-26.) Moreover, the judge found that the use of the table saw without the blade guard attached was standard practice with the employer and in the industry for certain cutting operations, such as cutting through thick panels, which the employee was doing. (Dec. 18-19.) The judge also found that the employee had not proved that use of the table saw without the blade guard violated OSHA regulations. (Dec. 19, 25.) The judge then found that "using the table saw without the blade guard installed for certain operations does not pose an unreasonably high risk of bodily harm with a high degree of probability that serious injury will occur." (Dec. 25.) Instead, the judge found the employee's own actions in mishandling the table saw caused the accident to occur. (Dec. 20.) The judge concluded both that the employee had failed to prove his entitlement to § 28 benefits, (Dec. 28), and that the employee did not violate § 27. (Dec. 20.) But, having found that the "employee's own misconduct and misrepresentations created the situation in which he was injured," the judge went on to find that the § 28 claim had been brought without reasonable grounds, and he assessed penalties in accordance with § 14(1). (Dec. 26.)
General Laws c. 152, § 14(1), provides, in pertinent part:
If any administrative judge or administrative law judge determines that any proceedings have been brought or defended by an employee or counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whomever is responsible.
The employee has not appealed the judge's findings as to the § 28 claim. We do not consider that aspect of the case. On the elements of a § 28 claim, see such cases as Scaia's Case, 320 Mass. 432 (1946); O'Leary's Case, 367 Mass. 108 (1975); Smith v.Raytheon, 9 Mass. Workers' Comp. Rep. 447 (1975).
The judge nevertheless found that the employee had suffered a compensable injury, and was entitled to § 34 temporary total disability benefits from the date of injury, April 20, 1994, until August 23, 1994, when he was videotaped working at the Marshfield Fair driving a truck and golf cart and delivering ice. Although the employee was not paid for this activity, the judge found that it demonstrated an earning capacity, as did the fact that he continued to operate a snow plow for the two winters following his injury. (Dec. 21.) The judge concluded that, by performing these two activities, the employee demonstrated that he could return to the work he had done as a counter salesman from 1980 to 1990. The judge went on to find that the employee, beginning on August 23, 1994, was able to earn an average weekly wage equal to or greater than his pre-injury wage of $400.00. (Dec. 22.)
The judge also denied the insurer's claim under § 14(2) that the employee failed to report earnings. (Dec. 23.)
The employee's first contention is that the judge erred in finding that the employee's § 28 claim was brought without reasonable grounds. We agree, and therefore reverse the award of § 14(1) penalties.
Section 14(1) sanctions are to be cautiously imposed. Ruiz v.Beaumont Nursing Home, 11 Mass. Workers' Comp. Rep. 417, 419 (1997). We have upheld such penalties where there was an "egregious 'disregard of the adjudicatory process and value of both lawyers' and judges' time and efforts.'" Dipace v. Ingalls Cronin, 7 Mass. Workers' Comp. Rep. 125, 126 (1993). See alsoBuchanon v. M. Demos Sons, 2 Mass. Workers' Comp. Rep. 21, 22 (1988). However, even where a § 28 claim was tenuous, we have refused to uphold § 14(1) penalties in the absence of "malevolent design of a sort that would constitute an absence of reasonable grounds to bring the claim . . . ." Brown v. Massachusetts Correctional Inst.-Norfolk, 10 Mass. Workers' Comp. Rep. 58, 60 (1996). In Brown, we looked for guidance to an analogous statute, G.L.c. 231, § 6F, which provided that counsel fees and costs may be assessed against a party prosecuting or defending claims that are found to be "wholly insubstantial, frivolous and not advanced in good faith." Id.
In the present case, the employee could have believed that his employer's conduct in allowing him to use the table saw when its foreman knew the blade guard had been removed was an egregious error which could have supported a § 28 claim. Id. Furthermore, the employee alleged that operation of the saw without the guard was a violation of OSHA regulations. Evidence of safety violations, while not dispositive, can support a finding of serious and willful misconduct. Smith v. Raytheon, 9 Mass. Workers' Comp. Rep. 477, 480 (1995); O'Leary's Case, 367 Mass. 108, 117 (1975). The judge here stated that "operating the table saw without the blade guard may possibly be a violation of OSHA regulations . . . ." (Dec. 19.) Thus, the particular circumstances of the injury indicate that the employee's § 28 claim was not wholly insubstantial or frivolous or advanced in bad faith. The employee may have had a better case had there been an OSHA inspection and a violation notice, but a safety violation may be found by the judge even in the absence of such findings. Cf.O'Leary's Case, supra, at 111-112 (in finding § 28 penalties were warranted, the court pointed out that the reviewing board itself in effect found a violation of a safety provision in a union contract). The employee's claim suffered from a failure to persuade the fact-finder, not a failure to have any reasonable grounds for bringing his claim. We therefore reverse the award of § 14(1) penalties.
29 C.F.R. 1910.212 (3)(iv)(f) states that "power saws" are machines which usually require point of operation guarding. (Employee Ex. 7.)
Moreover, the judge's finding that § 14(1) penalties were warranted because the employee's misconduct and misrepresentations created the situation in which he was injured, (Dec. 26), misconstrues the basis for an award of § 14(1) sanctions. The standard is whether the § 28 claim was brought without reasonable grounds, not whether the employee was somehow at fault for his injury. "Common law affirmative defenses such as an employee's 'assumption of risk' or 'contributory negligence' have no place in the workers' compensation act, and no role in a § 28 analysis."Smith, supra at 483. Even if the employee's actions played a role in his injury, that does not preclude a recovery under § 28. As already stated, the elements warranting at § 14(1) finding are absent here. Brown, supra, at 60.
The employee also contends that the judge erred when he retroactively discontinued benefits as of August 23, 1994. The judge ordered "that the insurer pay Section 34 benefits . . . for the periods from April 20, 1994 to August 23, 1994, and from February 6, 1995 to February 27, 1995, from July 24, 1995 to August 7, 1995, from September 11, 1995 to September 24, 1995, and from October 30, 1995 to November 13, 1995[.]" (Dec. 29.) The insurer attempted to file its request for discontinuance/modification on April 17, 1995; however as the insurer states in its brief:
"[t]he Complaint was not filed by the Department . . . but was rather returned to the Insurer because . . . the pendency of the Employee's Section 28 Claim precluded . . . the filing of another Complaint between the same parties based upon the same date of injury. Counsel for the Insurer acted expeditiously to place the matter before the Administrative Judge who, on May 2, 1995, allowed the Motion to Join a Claim for Discontinuance."
(Insurer's brief, 3; citations omitted.) As such, the earliest date a modification or discontinuance could take place is May 2, 1995. Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995). "[T]he order of discontinuance may go back no further than the date the request was filed." Id. Therefore, we reverse that portion of the administrative judge's decision which discontinued benefits prior to May 2, 1995. The periods of disability as determined by the judge after May 2, 1995, are affirmed.
Finally, the employee argues that since the insurer/employer conceded in their joint closing argument that the employee had no more than a $150.00 per week earning capacity after August 23, 1994, the judge erred as a matter of law in finding that the employee's earning capacity equaled or exceeded his average weekly wage of $400.00; that that question was removed as an issue before the administrative judge. The employee's argument is without merit. The closing argument which is referred to by the employee in pertinent part reads as follows:
"Therefore, the insurer/employer suggest that an earning capacity in the amount of $150.00 be assigned from August 23, 1994 to date . . . ." (Insurer's Closing Argument, 14; emphasis added.) Despite the employee's interpretation, this closing argument was nothing more than a suggestion presented to the judge for consideration. On the issue of incapacity, the employee claimed total disability from April 20, 1994 and forward. (Dec. 4.) The administrative judge provided sufficient findings, see Scheffler's Case, 419 Mass. 251 (1994), to support the earning capacity assigned. In the present case, to view these proceedings any differently would be to effectively remove the judge from the role of fact finder and make him a mere bystander. We are not inclined to do so.
The administrative judge's decision as to the employee's earning capacity is affirmed. The order imposing § 14(1) penalties is reversed, as is the order that the weekly benefits be discontinued prior to May 2, 1995. The remainder of the decision is summarily affirmed.
So ordered.
____________________ Frederick E. Levine Administrative Law Judge
____________________ Sara Holmes Wilson Administrative Law Judge
____________________ Carolynn N. Fischel Administrative Law Judge
FEL/kai
Filed: May 18, 1998