Opinion
BOARD No. 11760-92
Filed: December 29, 1995
REVIEWING BOARD DECISION
(Judges Wilson, Fischel, and McCarthy)
APPEARANCES
Joseph P. Minardi, Esq., for the employee
John R. Cowie, Jr., Esq., for the insurer
J. Norman O'Connor, Jr., Esq., on brief for the insurer
The insurer appeals from a decision in which the administrative judge ordered payment of temporary total incapacity benefits, as well as medical benefits, from January 21, 1993, the date that the employee had exhausted his unemployment benefits, in accordance with the provisions of G.L.c. 152, § 36B. The insurer contends 1) that the general findings are unsupported by the medical testimony and the findings of fact, and 2) that the employee failed to give the insurer proper notice of his claim, and did not meet his burden of proving that the insurer was not prejudiced by such failure. We conclude that the judge's findings of fact as to a work related injury, causal relationship and incapacity are adequate to support his conclusions. The insurer alleges that the judge erred by shifting the burden of proof to the insurer on the issue of prejudice to support his conclusions. We remand the case for application of the correct burden of proof and more specific findings of subsidiary fact regarding that issue. SeePena's Case, 5 Mass. App. Ct. 451, 457 (1977).
General Laws c. 152, § 36B states, in pertinent part:
(1) No benefits shall be payable under section thirty-four or section thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits.
The employee, who does not speak English, worked at a recycling company from March 1990, where he pulled out and sorted metal objects from trash moving on an escalator. His job entailed constant bending and lifting, with some of the lifting being heavy. At some point, possibly in May of 1991, the employee lifted a heavy metal tube out of the escalator and felt a pain in his back. The employee testified that he immediately reported it to Phil DiStefano, the plant manager. The judge noted that DiStefano did not speak Spanish, and that communication with the Spanish speaking employee was done through informal interpretation by co-workers. The employee lost no time, continuing to work with pain, but he did seek medical treatment. Medical records from Medical West show the employee began treating with them on May 10, 1991 for low back pain (Dec. 3-4).
The record shows that on September 25, 1991, the employer completed an accident report for an unknown date of injury, noting the employee presented a medical report from Dr. Morris Lainer for treatment for back strain (Employee exh. 6, referenced in Dec. 7). The employee did not miss any work at this time. Contemporaneous medical records indicated that he again sought treatment, and that the reported cause of his pain was his employment. Medical records also indicated that the employee first treated for lower back pain in May and June of 1991, always attributing the cause of his pain to his lifting at work (Dec. 6-7). The employee was laid off in January of 1992. The employee signed a lay off notice that reflected he asked to be laid off for medical reasons, including a back problem (Employee exh. 3, Dec. 6). He once more told his employer about his back pain, but apparently again did not report it as being work-related. The employee's claim form is dated April of 1992, indicating March 10, 1992 as the date of injury. The insurer denied the claim, and it was also denied at conference. The employee appealed (Dec. 2).
At hearing the parties agreed to waive the impartial medical examination, since initial liability was at issue. 452 CMR 1.10(7). The records of the employee's treating physician indicated chronic back pain, with complications due to diabetes and gout. The doctor, at deposition, testified that the employee's back pain was due to his employment. The judge found that although he could not on this record pinpoint a date when the particular injury happened it was largely immaterial, as it was clear that the employee had significant back pain for close to a year, and both the employee and Dr. Gartman attributed his back pain to his work activities (Dec. 7. He thus found that the employee's back pain was causally related to his constant bending and lifting while at work, without regard to any specific event. The judge also found that the employee had reported his back pain to the employer both in September of 1991 and January of 1992. The judge concluded that there was no evidence that the insurer was prejudiced by the employer's receipt of notice in September 1991 and at the time of the employee's lay off in January 1992, and that deficiencies in notice were not fatal to the employee's claim. The insurer was ordered to pay temporary and total incapacity benefits from January 21, 1993, the date of the employee's cut-off of unemployment benefits, and continuing, as well as medical benefits (Dec. 7-10). The insurer's appeal followed.
We focus on the claim of judicial error on the issue of notice. General Laws c. 152, § 41 states in pertinent part: "No proceedings for compensation payable under this chapter shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof. . . ." General Laws c. 152, § 44 states in relevant part: "Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice." "Knowledge of the injury" has been interpreted to mean the employer or insurer knew or had reason to know the injury was causally related to the employment. Kangas' Case, 282 Mass. 155 (1933). It is the employee's burden to prove lack of prejudice to the insurer by reason of the failure to give notice. Tassone's Case, 330 Mass. 545, 548 (1953). The usual forms of prejudice arise from the inability of the insurer to procure evidence at a time remote from the injury, and the failure of the employee to seek medical treatment promptly after the injury. Id. In addition, improper notice effectively can "destroy the right of the insurer to a [timely] medical examination [under] G.L. (Ter. Ed.) c. 152, § 45. . . ."Clifford's Case, 337 Mass. 129, 130 (1958).
In the instant case, the judge did not find that the employer or the insurer knew or had reason to know that a May 1991 lifting incident or constant heavy lifting and bending at work was the source of the employee's back pain any time prior to the March 10, 1992 claim for benefits, approximately one year after the initial onset of symptoms. Consequently, we must inquire in the alternative whether the judge found that the employee sustained his burden under § 44 of proving the lack of prejudice to the insurer attributable to the alleged late notice. Our scrutiny of the decision doesn't reveal the critical finding.
In his subsidiary findings, the judge stated only that "[t]here has been no evidence that the insurer has been prejudiced by [the alleged late notice], and I do not find notice to be fatal to the claim." (Dec. 8). This subsidiary finding seems to place the burden of proving prejudice on the insurer. To the contrary, the judge must determine whether the employee introduced evidence "from which a reasonable inference can be drawn that the insurer suffered no prejudice[,]" and base his findings on that assessment. Zabec's Case, 302 Mass. 465, 469 (1939). The law regarding notice is that the employee is "required to prove a negative, [namely that] his proof . . . be sufficient to exclude any reasonable probability of prejudice resulting from the two causes in question[, investigation and medical treatment/examination]." Id. at 468.
Our review of the record indicates there was little chance of prejudice to the insurer with regard to the medical issues in this case. The employee was treating during the entire period of back pain at issue, and the judge found subsidiary facts describing the employee's treatment (Dec. 6-8). Cf. Pena's Case, 5 Mass. App. Ct. at 456 (court remanded on notice issue chiefly due to lack of sufficient finding regarding medical treatment). Nor did the insurer present any medical evidence of its own, i.e. a report of a § 45 examination, for the judge's consideration (Dec. 2). The employer had an accident report about the back condition, with supporting medical records, in September 1991 (Dec. 4, 8). Therefore, the "usual forms of prejudice," Tassone's Case, supra at 548, involving prompt medical treatment and examination under § 45, are not at issue. If there was error in shifting the burden of proof, it is likely harmless in this respect.
The judge should, however, address the question of prejudice resulting from the insurer's inability to make a prompt investigation of the claim due to late notice. We do note that, as in Pena's Case, supra at 456, the employee's "back injury took place over a period of several [months], and the employee's foreman [and co-workers were] available and did testify as to the nature of the defendant's employment during that period. . . ." (Tr. 30-31, 44-45). As such, "[w]e are not dealing with the happening of a single event concerning which the rights of the insurer might be impaired if it were kept in ignorance of its occurrence and so prevented from conducting an investigation to determine whether such an event had in fact taken place and, if it had, to ascertain all the attending circumstances. . . ." Zabec's Case, 302 Mass. at 467. Nonetheless, these are all matters of fact for the administrative judge. We accordingly remand the case for appropriate subsidiary findings that answer this narrow inquiry as to prejudice to the insurer, and for the judge to specifically place the burden of proof on the employee in making such findings. SeeTherrien's Case, 2 Mass. App. Ct. 795, 796 (1974).
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
Filed: December 29, 1995