Summary
discussing problem that may arise in the application of § 27A on efforts to return to work after an industrial injury
Summary of this case from Rackliffe v. James, NoOpinion
BOARD No. 06452390
Filed: January 31, 1996
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy and Fischel)
APPEARANCES
G. Brian Shontz, Esq., for the employee
Michael A. Fager, Esq., for the insurer
The employee appeals a decision in which the administrative judge denied and dismissed his claim for benefits under §§ 34 and 30, finding that the employee had made misrepresentations of material fact in applying for the subject job and was therefore barred by G.L.c. 152, § 27 from receiving workers' compensation benefits. We conclude that this is an appropriate case for recommittal to the judge for further findings. G.L.c. 152, § 11C.
"If the employee is injured by reason of his serious and willful misconduct, he shall not receive compensation . . . ." G.L.c. 152, § 27 (St. 1935, c. 331).
Before becoming employed by the employer as an assistant branch manager in October 1988, the employee had suffered two industrial accidents to his back, which resulted in a medical condition diagnosed as a "central herniated disc at L5-S1 with impingement upon the proximal root sleeves of the right and left S1 root and question of compression of the left L5 nerve root in the intervertebral foramen." (Dec. 4-5.) He was given a pre-employment physical by the employer. (Dec. 6.) The work for which the employee applied involved overseeing the distribution of home delivered newspapers, driving, and physically lifting, twisting and moving bundles of newspapers that weighed up to forty pounds. (Dec. 5.) After working for the employer for two years, the employee suffered a new industrial injury to his back while picking up bundles of newspaper on November 3, 1990. He was diagnosed with a ruptured disc at L5-S1, had two operations, and has not returned to work. (Dec. 5.)
The employee filed a claim for benefits under §§ 34 and 30, which resulted in an order of payment at conference. Both parties appealed to a hearing de novo. In the decision issued after hearing, the judge found that during the process of applying for the subject job, the employee made false or misleading representations, including a statement on his resume that his health was "excellent" when he knew he had a herniated disc for which he underwent ongoing treatment, and that he had stopped working for a former employer because of chemical exposure, rather than his back injury, which had incapacitated the employee for close to two years. (Dec. 6.) Further, during the course of a pre-employment physical examination, the employee denied having backaches and related his prior medical treatment to a car accident. (Dec. 6-7.) The judge weighed these facts in accordance with the legal standard announced in Shaw's Supermarkets, Inc. v.Delgiacco, 411 Mass. 840 [ 410 Mass. 840] (1991), in which the court applied § 27 to the issue of whether a representation made in an application for employment constituted a bar to receiving workers' compensation benefits. The administrative judge determined that she did not need to apply the newly enacted § 27A, see infra, which specifically addresses the issue raised on the instant facts, in view of the fact that she decided the case under § 27. (Dec. 7, n. 1.) The judge concluded that the employee was barred from recovery, due to the application of § 27 in accordance with theShaw's opinion. She hence denied and dismissed the claim. (Dec. 7-10.)
The employee contends that the judge's decision is contrary to law due to failure to apply the provisions of § 27A, and additionally claims error due to failure both to decide issues presented and to make sufficient subsidiary findings. The employee's § 27A argument has merit, and we recommit the case to the judge for further findings respecting that section's applicability.
The employee claims that the judge failed to address issues raised by the employee under §§ 13A, 50 and 1(1). We agree with the judge that her conclusion that the employee is barred from receipt of worker's compensation benefits renders consideration of §§ 13A, 50 and 1(1) superfluous. Findings under these sections are triggered only when the employee prevails at hearing, compensation is awarded or weekly benefits are ordered, respectively.
General Laws c. 152, § 27A was added by St. 1991, c. 398, § 51A, and provides in pertinent part:
In any claim for compensation where it is found that at the time of hire [1] the employee knowingly and willfully made a false representation as to his physical condition and [2] the employer relied upon the false representation in hiring such employee, [3] when such employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring serious injury, then the employee shall, [4] if an injury related to the condition misrepresented occurs, not be entitled to benefits under this chapter.
Pursuant to St. 1991, c. 398, § 107, the newly enacted § 27A was designated as a "procedural" provision, and therefore applicable to all claims, regardless of whether the date of injury preceded the enactment of the section on December 23, 1991. The clear intent of the Legislature in § 107 was to ensure that all amendments in St. 1991, c. 398, other than those listed in §§ 103-106, have "'application to personal injuries irrespective of the date of their occurrence.'" Connolly's Case, 418 Mass. 848, 851 (1994), quoting G.L.c. 152, § 2A. Therefore, it is clear that the judge should have applied § 27A in the instant case.
"Except as specifically provided by sections one hundred and three to one hundred and six, inclusive, of this act [St. 1991, c. 398, designating certain amendments as substantive and prospective only], all sections of this act shall, for the purposes of section two A of chapter one hundred and fifty-two of the General Laws [defining the general rules of application of amendment to c. 152] shall be deemed to be procedural in character." St. 1991, c. 398, § 107.
Instead of applying the four tests specified in § 27A, cited above, the judge applied three of exactly the same tests under the rubric of the "Larson Rule" for determining when fraud in an employment application will bar receipt of benefits under § 27, as adopted by the Supreme Judicial Court in Shaw's Supermarkets, Inc. v. Delgiacco, 410 Mass. 840 (1991). (Dec. 7.) The court set out the three "Larson" factors:
(1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.
Id. at 843. These factors correspond to numbers 1, 2 and 4 listed in § 27A quoted above. The judge's conclusions respecting these three tests, (Dec. 7-10), may be tainted by her subsidiary findings that "the employee claimed to have been employed by Chem-Lawn until February 1987 [when] [i]n fact, the employee was receiving worker's compensation benefits from April 1985 until February 1987 because of his first back injury[, and] the employee claimed to have been employed by New England Tractor Trailer Training School until October 1988 [when] [i]n fact, he was receiving worker's compensation benefits for his second back injury from January 1988 until November 1988." These findings suggest a misapprehension that employee status is incompatible with receiving weekly compensation benefits. Because we are unable to discern to what extent this apparent misconception colored the judge's conclusions on the three "Larson" factors, we vacate those conclusions made pursuant to § 27.
By applying the "Larson Rule" as opposed to § 27A, moreover, the judge omitted a necessary finding on the third test listed in § 27A: whether "such employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring a serious injury, . . ." In our view, § 27A was legislatively crafted to address precisely the issue presented here and accordingly takes precedence over the Shaw's Supermarkets analysis it replaces. We therefore recommit the case for complete findings pursuant to § 27A.
As a final matter the employee raised issues as to §§ 7 and 8, (March 3, 1990 Tr. 5), that are not addressed in the decision. Since the case is recommitted for further findings, these claims may be considered as well.
So ordered.
__________________________ Sara Holmes Wilson Administrative Law Judge
___________________________ William A. McCarthy Administrative Law Judge
Filed: January 31, 1996
For good reasons, the majority is remanding this matter for application of § 27A to these facts, and I agree with them in this regard. However, I believe that something further needs to be said about the law based on these facts. The facts here are that the employee represented that he was in good health, and the employee was able both to pass the employer's pre-employment physical and successfully perform his work duties for two years prior to injury.
To apply § 27A to bar such an employee from receiving compensation would have the result that an employee with any history of medical treatment could be deprived of workers' compensation when an industrial injury involves a bodily part previously treated. Moreover, because of the retroactive effect of § 27A, employees who in job applications or in their resumes proclaim their good health may, after years of service to an employer, be barred from receipt of c. 152 benefits because of a section of that law that did not exist at the time their applications or resumes were submitted. Finally, § 27A applied in this way may require employees to volunteer information in the hiring process that employers would not even be permitted to ask pursuant to the Americans with Disabilities Act and G.L.c. 151B.
Section 12112(d) (2) 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. Cyanamid Plastics, Inc., Lawyers Weekly No. 01-294-95 (December 4, 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 the prohibitions set forth in § 12112(d) (2) of the ADA.
The underlying purpose of the compensation scheme is that "the cost of the injuries incidental to modern industry should be treated as part of the cost of production," Gagnon's Case, 228 Mass. 334, 336 (1917), quoting the 1912 Commission Report, p. 46; Locke, Workmen's Compensation, § 303 at 354-355; and Mizrahi's Case 320 Mass. 733, 736 (1947). The Act must "be interpreted in the light of its purpose and so far as reasonable may be to promote the accomplishment of its beneficent design." Young v. Duncan, 218 Mass. 346, 349 (1914); Neff v. Commissioner of the Department of Industrial Accidents, 421 Mass. 70, 73 (1995). Application of § 27A with no regard to the duration of successful reemployment would undermine the beneficent design which encourages injured employees to return to the work force, c. 152, § 1(12), 30G, 30H, 30I, 35B, 37, 37A, 75A, 75B, by barring compensation to employees who succeed in reemployment for many years despite some preexisting condition.
The legislature may have intended, in enacting § 27A, to prohibit the receipt of compensation by an employee who intentionally undertakes new employment opportunities for the purpose of triggering a workers' compensation claim by sustaining a new work injury shortly thereafter. Beyond such circumstances, the application of § 27A disrupts the purpose of the compensation system, and harms injured employees who return to the work force. Here the employee may have felt physically fine when he filled out his application for work, passed the pre-employment physical exam, and successfully worked without modification of his duties for two years. Though this is clearly an issue to be weighed by the adjudicator, there ought be a rule of reason in the application of this new provision of the statute, in which the duration of employment is factored into the analysis under § 27A.
In employing a rule of reason to the application of § 27A, the duration of employment must be considered lest industry not shoulder the cost of work injuries as part of the cost of production, with the result that employers required to purchase workers' compensation policies get no benefit for the premiums insurers collected, and injured employees, after years of service to an employer, be denied receipt of incapacity benefits for failure to make disclosures that would be barred by federal and state law. Incapacitated employees would then be dumped onto the welfare system, with taxpayers thus bearing the burden of what the 1912 enacting Commission intended be the responsibility of industry.
________________________ Carolynn N. Fischel Administrative Law Judge