Opinion
BOARD No. 103138-86
Filed: March 13, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Sean Gleason, Esq., for the employee.
Charles E. Chase, Esq., for the insurer C F Underwriters Group.
Following a recommittal by the reviewing board, C F Underwriters Group (C F), the first insurer in this successive insurer case, appeals once again. Because the judge failed to follow the instructions on remand, we reverse the decision and remand for a hearing de novo.
We review the pertinent facts which are set out in more detail in Wile v. Sharnet Corp./Bartex Ind. Corp/Diversified Business Sys., 9 Mass. Workers' Comp. Rep. 753 (1995). The employee originally filed a claim for benefits against Sharnet Corp. (Sharnet) as a result of a back injury sustained when she attempted to hoist a 300 pound roll of fabric on June 17, 1986. At that time C F Underwriters Group (C F) insured Sharnet. She returned to work in August, 1986, but left in February 1987 after experiencing continued pain. Id. at 754. Ms. Wile-Mitchell then obtained employment at Diversified Business Systems (Diversified), a bindery, where the pain persisted, but its severity did not prevent the performance of her job duties. Id. On September 1, 1989, while trying to unloose a bolt with a wrench on a malfunctioning printing press, she had a sudden onset of "popping" and "snapping" in the same part of her back injured previously at Sharnet. Id. On September 1, 1989, Diversified was insured by Public Service Mutual Insurance Company (Public). Prior to that time, Diversified was insured by Travelers Insurance Company and Royal Insurance Company.
Travelers insured Diversified from January 10, 1987 to January 9, 1989; Royal insured Diversified from January 10, 1989 to May 31, 1989; and Public was on the risk for Diversified from June 1, 1989 to April 1, 1990. Wile, supra note 2.
The employee filed a claim for workers' compensation benefits on and after September 1, 1989 against Sharnet, based on the June 17, 1986 injury date. The judge denied C F's motion to join Public in the action and dismissed Travelers and Royal from the case. Wile, supra at note 2. Following a hearing, the administrative judge found that the employee's injury on September 1, 1989 at Diversified was a recurrence of the June 17, 1986 injury and not a new injury or aggravation. Id. at 754. He found C F liable and ordered the payment of closed periods of § 34 and § 35 weekly compensation as well as § 30 related medicals and § 13A attorney's fees. Id. at 754, 756. C F appealed to the reviewing board.
The reviewing board vacated the judge's first hearing decision and remanded the case for further findings on whether the employee's incapacity was the result of the natural progression of the original injury on June 17, 1986 or the result of the incident on September 1, 1987. Wile, supra at 755-756. Because the evidence as found by the judge suggested a second injury, the reviewing board vacated the judge's rescission of the joinder of Travelers and Royal to the case and reversed the judge's denial of C F's motion to join Public and ordered Public joined. Wile, supra at 756. The reviewing board did not reach C F's appeal on the issue of the award of the attorney's fees because the decision was vacated.
The hearing judge had denied C F's motion to join Public on March 25, 1992 and again on June 19, 1992. Wile, supra at note 5.
On recommittal, the judge failed to join Public. After reviewing the evidence on the existing record, he made further findings and once again assessed liability against C F, finding that the September 1, 1989 injury was a medically disabling recurrence flowing from the initial June 17, 1986 industrial accident. (Dec. 18.) He then ordered the identical closed period of § 34 temporary total incapacity benefits followed by § 35 partial incapacity benefits as in his first decision. The judge also directed payment of § 30 medical benefits and § 13A(9) attorney's fees. It is C F's appeal from the judge's second decision that is now before us.
C F argues that a second injury (when Public was on the risk) was established as a matter of law; that it was prejudiced by the inability to depose one of the experts; and that it was error to order an attorney's fee. Because of our disposition in this case, we do not reach all C F's issues.
The law is clear that only one insurer is chargeable for the payment of compensation for a single period of incapacity. SeeEvans's Case, 299 Mass. 435, 436-437 (1938); Trombetta's Case, 1 Mass. App. Ct. 102, 104 (1973); Louis' Case, 424 Mass. 136, 141 (1997). In a successive insurer case, liability rests with the one covering the risk at the time of the most recent injury bearing a causal relation to the incapacity. The hearing judge must determine whether an injury is a recurrence solely related to a prior injury, usually evidenced by a continuity of complaints about the medical condition from the date of the first incident through the date of the second incident. Smick v. South Central Mass. Rehabilitative Resources, Inc./Town of Southbridge, 7 Mass. Workers' Comp. Rep. 84, 86 (1993) and cases cited; seePanagotopulos's Case, 276 Mass. 600, 607 (1931) and cases cited. In such a case, where a subsequent injury does not contribute to a claimed period of incapacity, it is proper to order the first insurer to pay compensation. Evans's Case, supra at 437. However, where the evidence demonstrates that a subsequent injuryalso participated causally in the claimed period of incapacity "to the slightest extent," then the judge must find liability against the insurer on the risk for any such period. Casey's Case, 348 Mass. 522, 524 (1965).
In the case at hand, we cannot tell whether the judge applied these legal principles. G.L.c. 152, § 11C. We, therefore must recommit the case once more. See Praetz v. Factory Mut. Eng'g Research, 7 Mass. Workers' Comp. Rep. 45, 47 (1993).
There is another major problem with the decision. In his first decision, the judge twice denied C F's motion to join Public as a party. See supra note 3. On remand, he failed to join Public as directed by the reviewing board in Wile, supra at 456. While Public, the insurer on the date of the second incident or injury, filed a brief in this appeal, it was never formally joined.
Due process applies to board proceedings. Haley's Case, 356 Mass. 678, 682 (1970). At a minimum, this means that all parties have a right to know the evidence against them, to have an opportunity to rebut such evidence, to present evidence, to examine and cross examine witnesses and to argue all issues of fact or law involved in the hearing. Id. at 681. It follows that all necessary parties must participate in the hearing. See Scotti v. Honeywell/Loral Infrared Imaging Sys., 11 Mass. Workers' Comp. Rep. 333, 337 (1997). It was error for the judge to deny C F's motion to join Public.
We recommit this case for joinder of all necessary insurers followed by hearing de novo. The judge should make clear and specific findings on whether the periods of §§ 34 and 35 weekly incapacity are the result of a recurrence of medical disability caused by the June 17, 1986 injury when C F was on the risk or whether the September 1, 1989 incident contributed in any way, however slightly, to the incapacity, thus constituting an aggravation or new injury chargeable to Public. As the administrative judge who heard this case is no longer with the board, we forward it to the senior judge for reassignment for hearing de novo.
So ordered.
_______________________________ William A. McCarthy Administrative Law Judge
_______________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: March 13, 1998