Opinion
BOARD No. 00753295
Filed: May 28, 1998
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson).
APPEARANCES
Bernard W. Fabricant, Esq., for the insurer.
James F. Fitzgerald, Jr., Esq., for the employee.
The employee appeals a decision in which the administrative judge denied and dismissed her claim for benefits under §§ 34 and 30, finding that the employee had made misrepresentations of material fact in applying for the job at Sedgwick James (Sedgwick) and was therefore barred by G.L.c. 152, § 27A from receiving workers' compensation benefits. We reverse this finding and recommit this case for further findings pursuant to § 11C.
That section provides, in pertinent part:
In any claim for compensation where it is found that at the time of hire the employee knowingly and willfully made a false representation as to his physical condition and the employer relied upon the false representation in hiring such employee, when such employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring a serious injury, then the employee shall, if an injury related to the condition misrepresented occurs, not be entitled to benefits under this chapter.
G.L.c. 152, § 27A, added by St. 1991. C. 398, § 51A.
The employee's claim is for a neck injury sustained on February 15, 1995 at Sedgwick. Her claim was not accepted by the insurer. Following a conference on December 6, 1995, the administrative judge issued an order for § 34 temporary total incapacity benefits and related §§ 13 and 30 medicals from February 16, 1995 and continuing. The insurer appealed to a hearingde novo.
The employee was examined by a § 11A physician on February 6, 1996. He diagnosed a disc herniation at C5-6 or "cervical root neuropathy secondary to protruded intervertebral disc at C5-6 and degenerative disease of the intervertebral nerve root foramen at that same level with a condition after treatment including C5-6 discectomy and a foraminotomy" causally related to the history of the employee's using her head a certain way over prolonged periods at work. (Dec. 246; Employee's Ex. 2, at 3; Mark Dep. 21.) He opined that work at Sedgwick worsened her condition resulting in a present partial disability which was not at an end result. (Dec. 246.)
Lay hearings were conducted on July 16, 1996 (Tr. I) and October 10, 1996 (Tr. II.). Testimony was taken from the employee; Patricia Richards, Sedgwick's Claim manager and her supervisor; and Carol Finn, a claims examiner and fellow employee.
The judge filed his decision on January 8, 1997 and found that the employee suffered an injury arising out of and in the course of her employment and that she was partially disabled. (Dec. 252.) Nevertheless, the judge ruled that the employee was not entitled to workers' compensation benefits because, at the time of hire, she knowingly and willfully made a false representation as to her physical condition and her ability to perform the work, that Sedgwick relied on the misrepresentation, and the employee knew or should have known that it was unlikely that she could perform her duties due to continuing neck problems without a high likelihood of suffering a serious, disabling injury. (Dec. 249-252); see supra note 1, (text of § 27A).
Before becoming employed by Sedgwick as a claims representative in August of 1994, the employee worked at Kemper Insurance Company (Kemper) and Hanover Insurance Company (Hanover) as an insurance auto claims adjuster. (Dec. 241.) The work at Hanover involved photographing accident scenes, typing at a computer terminal, and using the telephone. Id. While working for Hanover, the employee suffered a C5-6 disc herniation which was attributed to her habit of holding the telephone receiver between her head and shoulder. Id. As a result, she underwent several surgeries and received workers' compensation from 1990 to 1992. Id. The employee left Hanover, and returned to work part-time in October 1992 with Easton Chiropractic (Easton). (Dec. 242.) In June 1994, the employee answered an advertisement in the Boston Globe for a claims representative or claims technician position at Sedgwick. This job entailed assisting claims adjusters, which was her position at Kemper and Hanover. (Dec. 242.) By letter, dated June 28, 1994, she indicated her interest in the job and referred to her past employment to demonstrate she had the type of experience required by Sedgwick. (Dec. 242-243.) On August 1, 1994, the employee filled out an employment application in which she exaggerated her part-time earnings at Easton and did not mention that she left Hanover because of her previous industrial injury, mentioning only that the Hanover offices were consolidated. (Dec. 243.)
This is an approximation of the actual advertisement appearing in the Globe. See (Employee's Ex. 4.)
Workers' Compensation Liability claims Representatives to support Adjusters working on self-insured accounts. Four year degree preferred. 1-2 years claims and keyboard experience. Send cover letter and resume including salary requirements to:
Trish Richards Sedgwick, Inc. 120 Royall Street Canton, MA 02021 No phone calls, please.
She signed a release, which allowed Sedgwick to contact her prior employers. Id. Ms. Richards, who interviewed the employee, did not avail herself of the opportunity to contact Hanover or Kemper. Id. There was no pre-employment physical. Ms. Richards apprised the employee that the Sedgwick job was clerical in nature and involved much paperwork requiring repetitious movements. Id. The employee was hired on the spot without any disclosure of her 1990 work injury. (Dec. 243-244.) Before applying for the Sedgwick position, the employee went to a vocational expert who had advised the employee that she could perform the duties of a claims adjustor. (Employee's Ex. 3.) (The Rehabilitation Report admitted for the limited purpose of showing the employee's reliance on the recommendation); (Tr. II, at 10, 16-18, 23.)
The employee began her employment at Sedgwick in August of 1994. (Dec. 244.) At that time, "she was essentially pain free, although she still experienced some residual neck pain."Id. The judge found that the employee thought the job would be much the same as her Hanover and Kemper jobs, but in fact, the Sedgwick job "was more strenuous than the others".Id. The job was to pay bills for the company, involving much telephone and data entry work and more repetitive work than she had expected. Id. In addition, work had piled up prior to her being hired, so she was "swamped" with work from the beginning, with essentially no training, and had to work five to ten hours of overtime per week. Id.
The judge found she had a "baptism by fire." (Dec. 244.)
About two months later, in October 1994, the employee began experiencing cramps and spasms for which she sought treatment.Id. On February 9, 1995, she was given a poor performance review. The employee met with Ms. Richards about the report and Ms. Richards recorded that the employee blamed her poor performance on physical problems with her neck for which she had previously undergone surgery, the first time she revealed this information. (Dec. 245.) Ms. Richards recorded that had the employee known about the volume of writing and typing involved, she would not have taken the job. Id.; see (Insurer's Exhibit 9.) The employee left work after meeting with Ms. Richards and on February 15, 1995 she delivered a letter to her employer from a physician which disabled her from work.Id. She has not returned to work since.
Based on this record, the judge denied the employee's claim on the basis that it was barred by the operation of § 27A. See supra note 1 (text of § 27A). The judge did not find an affirmative duty in § 27A for an employer to ask questions about possible medical conditions as it would run the risk of violating the Americans with Disabilities Act (ADA), nor did he find that an employee must "expressly misrepresent her physical condition" before an insurer can invoke § 27A. He, however, found that 1) The employee made misrepresentation that she "was familiar with the job," and that "she could do it;" 2) upon which "fitness for the job" Sedgwick relied in hiring her; and that 3) she knew that she could not return to her previous type of employment without a high likelihood of suffering a serious disabling injury. (Dec. 250-252.)
The concurring opinion in Fuda v. The Boston Herald, 10 Mass. Workers' Comp. Rep. 68, 71-72 n. 1 (1996), stated:
Section 12112(d) of the ADA provides that employers generally cannot inquire into the nature or severity of an individual's disability as part of the pre-employment process. Grenier v. Cynamid Plastics, Inc., [ 70 F.3d 667 (1st Cir. 1995)]. In pre-employment situations § 12112(d)(2) of the ADA provides that an employer covered by the ADA may make pre-employment inquiries into the ability of an applicant to perform job-related functions, but is prohibited from inquiring of a job applicant as to whether such an applicant is an individual with a disability or as to the nature or severity of such disability. Id. If § 27A is read to require an employee to disclose prior treatment or prior injuries, it invites breach of prohibitions set forth in § 12112(d)(2) of the ADA. Id. (Fischel, J., concurring).
See also 42 U.S.C.S. § 12112 (lawyers Co-op. 1990)(ADA); 41 C.F.R. § 60-741.2 (OFCC P. Regulations, Affirmative Action Program for Handicapped Persons); G.L.c. 151B, § 4(16) (employers may not inquire whether prospective employees suffered prior work injuries.) Because of our disposition of this case, we do not address the problem that may arise in the application of § 27A where employees may be required to volunteer information in the hiring process that employers would not be permitted to ask under the ADA.
In support of his determinations, the judge made the following findings:
The employee knew in 1992 that she could not return to a job that required such clerical duties as computer data entry and significant telephone use (without headset telephones) like her previous insurance adjuster positions.
The employee applied for a clerical job at Sedgwick James emphasizing in her letter of application and at her job interview that she had the clerical skills for the job, making reference to her tenure at two other insurance companies. These are the same skills that she had known for more than a year would likely cause a disabling injury if she attempted to use them.
She lied about her separation from her last insurance position, passing up an opportunity to inform Sedgwick James of her condition. The employee felt symptoms immediately upon starting the job, and was dealing with serious symptoms within two months of her hire. The employee left Sedgwick James claiming disability about six months after her hire, on the day she received a poor job performance review and had been placed on two weeks probation.
(Dec. 248-249.)
There are several problems with the judge's decision that require recommittal. A judge's findings must be sufficiently clear and specific for us to discern the judge's logic for his conclusions.Crowell v. New Penn Motor Express, 7 Mass. Workers' Comp. Rep. 3, 4(1993). We are unable to perform our appellate function in the absence of such findings.Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
This standard has not been met. It is not clear that the employee knew the nature of the Sedgwick job and that she knew it was more strenuous than work at Hanover, Kemper or Easton, her prior employers. While Ms. Rackliffe testified that she thought she could do the clerical duties described by Ms. Richards at the interview, she also testified that she was not aware of the extent of the intensity and the strenuousness of the amount of repetitive movements involved. (Tr. I, at 19, 25, 30, 56, 60-61, 82; Tr. II, at 5, 24-25.) We note the judge found that the job was more strenuous and repetitive than the employee thought. (Dec. 244.) Moreover, the employee stated she relied on the vocational expert's opinion that she could perform a position in insurance claims. (Tr. II, at 16-18.) In addition, the nature of the work, as described, was distorted because of the very serious backlog due to the longstanding vacancy of the position. (Dec. 244.)
Indeed, Ms. Richards testified that in the past, other employees in the Sedgwick job thought it was easier than it was and had problems with the amount of paperwork and did not understand the very repetitive nature of the job. In fact there had been 20 to 30 people in the job in the past 4 years. (Tr. II, at 30, 63, 69.)
The strenuousness of the work and the presence of a backlog were apparently not known to Ms. Rackliffe until she was on the job. There is no way of knowing if she could do the job in the absence of this situation. Furthermore, Ms. Richards did not explicitly state that she relied on the employee's representation about her physical condition in hiring her, but rather on her claims experience, maturity and college education. (Tr. II, at 56, 71-72.)
For a misrepresentation to be material and knowing, an employee must have a full and accurate concept of the job duties. The undisclosed amount of the backlog made that impossible. In addition, it is not clear whether the physical requirements of the job were adequately explained. A rule of reason must be employed in applying § 27A so as not to defeat honest incentives and attempts to return to work after an injury, a goal of G.L.c. 152. See Fuda v. The Boston Herald, 10 Mass. Workers' Comp. Rep. 68, 71-72 (1996)(Fischel, J., concurring) (discussing problem that may arise in the application of § 27A on efforts to return to work after an industrial injury).
Accordingly, we reverse and recommit for further findings on whether the employee fully understood the physical requirements of the job at Sedgwick. If she did not, there was no violation of § 27A. In that case, the judge is to make further findings in light of his determination that the employee is partially incapacitated, which determination we affirm.
So ordered.
_____________________ Carolynn N. Fischel Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: May 28, 1998