Summary
In Wyman, supra, we examined § 7A with an eye toward the difference between the above-quoted new version of the statute and the 1971 version (St. 1971, § 702) which it replaced.
Summary of this case from Costa v. Colonial Gas Company, NoOpinion
BOARD No. 10045985 and others.
Filed: June 28, 1995
REVIEWING BOARD:
Judges Wilson, Fischel, and McCarthy.
APPEARANCES:
Leonard Y. Nason, Esq., for the employee.
Patricia C. Fraizer, Esq., for the insurer Hartford.
Richard Allen, Esq., for the insurer Aetna.
Stephen Linsky, Esq., for the Trust Fund.
Linda T. Manning, Esq., for the insurer Commercial Union.
This appeal follows the administrative judge's denial of benefits to the claimant on grounds of late notice and failure to file a timely claim pursuant to G.L.c. 152, § 41.
After the employee died on March 8, 1986, allegedly from exposure to carcinogens at work over a thirty-seven-year period, his widow filed a claim for benefits pursuant to §§ 13, 30, 31, 33, 34 of the Act. That claim was denied at conference, and the claimant sought hearing de novo. After a non-evidentiary hearing, considering the parties' memoranda on the insurer Hartford's Motion to Dismiss and examining the Department file, the administrative judge made the following findings of fact:
I find that the deceased Employer William F. Wyman, last worked on 3/1/85 and died on 3/8/86. A claim was filed for compensation in this matter on 3/13/90. I find that the [sic] matter of law that Section 41 in effect prior to its amendment by Chapter 572 § 65 [of] the Acts of 1985 is applicable in the instant matter. Further, I find under Section 49 of Chapter 152 prior to its amendment by the Acts of 1985 that the Employee's widow as claimant has not shown that the failure to file a timely claim within the one year time limitation to be due to mistake or other reasonable cause pursuant to Section 49 as referenced. I find that as a result of the sale of the employer, Courier Citizen, to sell of Canada that the claimant has not shown that there would be no prejudice to the insurer(s) by late notice. I do not find that Section 7A while establishing primary evidence and "sufficient notice" is bar to the statute of limitations in this matter, in effect finding that the presumption of 7A as to notice is rebutted and that timely notice was not afforded to the insurer.
The judge thereupon granted the insurer Hartford's motion and dismissed the case without hearing the testimony of any lay or medical expert witness.
The twenty-nine-page transcript of the hearing held on October 21, 1991 consists of exchanges between the judge, employee's counsel, and the four insurance company attorneys. No testimony was taken. While the transcript concludes with the words, "WHEREUPON, the hearing was continued[,]" no further hearing was held (Tr. 29).
The claimant raises two arguments on appeal before the board. The first contention is that due process requires a full evidentiary hearing on the issues, including §§ 7A, 41, and 49, and that the judge's failure to hold such a hearing was arbitrary and capricious as well as a deprivation of the claimant's due process rights. The claimant also maintains that because § 7A is self-operative, once the claimant invoked the section, the judge was compelled both to address the issues in a full evidentiary hearing and to find for the employee on the issue of sufficiency of notice and timeliness of claim due to the section's force and effect. In its brief, the insurer Hartford concedes only that the employee is entitled to a hearing solely on the issue of whether the exculpatory provisions of § 49 apply to this case, but disputes the claimant's argument that § 7A establishes prima facie evidence that the claim was filed within the time prescribed in § 41.
We address the § 7A issue first, and conclude that the section is self-operative as to notice but not as to the filing of the claim within the statute of limitations set out in §§ 41 and 49.
At the time of the filing of the claim and the abbreviated hearing before the judge, § 7A provided in pertinent part:
In any claim for compensation where the employee has been killed, or found dead at his place of employment or is physically or mentally unable to testify, it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or fatality or death or disability and that the claim comes within the provisions of this chapter, [and] that sufficient notice of injury has been given. . . .
(Emphasis added.) St. 1947, c. 380, as amended by St. 1971, c. 702. By its ordinary meaning and approved usage, see Hashimi v. Kalil, 388 Mass. 607, 609 (1983), the language of the statute applies specifically to the sufficiency of notice of injury, but omits any reference to the timeliness of the filing of the claim. Not only should statutory language be construed by giving words their plain and ordinary meaning, but also the language "is not to be enlarged or limited by such construction unless its object and plain meaning require it." See Johnson's Case, 318 Mass. 741, 746-747 (1945). It is true that § 7A has been held to apply broadly to issues affecting liability. Zavalia v. City of Salem (School Dept.), 6 Mass. Workers' Comp. Rep. 276, 279-280, (1992) (extending application of § 7A to §§ 36 and 36A). In Zavalia, we reasoned that the Supreme Judicial Court construed § 7A "as establishing, inter alia, prima facie evidence of causal relationship. . . [.]" Id. at 279, quoting Anderson's Case, 373 Mass. 813, 816 (1977) (our emphasis supplied). We also observed in Zavalia that broad application of § 7A as to the issues of liability is consistent with the statutory language as well as with an intent to help the employee where he cannot help himself Id. Nevertheless, we were careful "not to suggest that the Legislature intended no limitation whatsoever on the application of § 7A to the provisions of c. 152." Id. In our view the Legislature has clearly set such a limitation on the reach of the broad umbrella of assistance that § 7A confers by its express inclusion of the language "sufficient notice of injury" and corresponding omission of any reference to § 41 time limits on filing of claims., These jurisdictional notice and statute of limitations provisions differ in kind from the substantive issues around liability considered in Anderson's Case, and Zavalia, supra. Of central import to our analysis, however, is the oft-repeated "canon of statutory interpretation that every word of a legislative enactment is to be given force and effect so far as reasonably practicable. No part is to be treated as immaterial or superfluous unless no other rational course is open." Comm'rs Public Works v. Cities Service Oil, 308 Mass. 349, 360 and cases these cited. (1941). To construe the language "and that the claim comes within the provisions of this chapter" as demonstrating legislative intent that § 7A also apply to the claims limitation under § 41 is to ignore the command that "none of [the statutory] words is to be rejected as surplusage," and would render the language "that sufficient notice of injury has been given" just that. Meunier's Case, 319 Mass. 421, 423 (1946). If the Legislature intended to fold the § 41 jurisdictional requirement of timely filing of claim into the § 7A provision "and that the claim comes within the provisions of this chapter," its specific and separate reference to the companion § 41 jurisdictional element of sufficient notice would be redundant and superfluous. We therefore decline to read into § 7A something neither touched upon by the Legislature nor, we think, intended. See King v. Viscoid Co., 219 Mass. 420, 425 (1914); Boylston Water Dist. v. Tahanto Regional School Dist., 353 Mass. 81, 84 (1967).
At the time of the employee's alleged injury, prior to his leaving work on March 1, 1985, § 41 provided as follows:
No proceedings for compensation for an injury shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury has been made within one year after its occurrence, or, in case of death of the employee, or in the event of his physical or mental incapacity, within one year after death or the removal of such incapacity, or, in case an action against a third person is discontinued as provided in section fifteen, within thirty days after such discontinuance.
St. 1965, c. 487, § 1.
The maxim expressio unius est exclusio alterius is a familiar principle of interpretation that, although not conclusive, serves as an apt guide to statutory construction in this case. See General Electric Co. v. Commonwealth, 329 Mass. 661, 664 (1953); Ianelle v. Fire Commissioner of Boston, 331 Mass. 250, 252-253 (1954).
We next examine the claims of deprivation of due process. It is well-accepted that constitutional due process requirements apply to workers' compensation hearings. See Haley's Case, 356 Mass. 678, 681-682 (1970) (citing Meunier's Case, 319 Mass. 421, 426-427 (1946)); Stacey v. North Shore Children's Hospital, 8 Mass. Workers' Comp. Rep. 365 (1994). In the case at bar, the administrative judge erred in finding that the case was barred by the notice and claim requirements of § 41 when he based his decision not on an evidentiary hearing, but on information garnered in a colloquy among multiple attorneys and the judge, and from memoranda of law. While the administrative judge correctly determined that § 7A applies only to the sufficiency of notice provision of § 41, his finding, in effect, that the prima facie force of § 7A as to sufficient notice was overcome by other evidence cannot stand in the absence of an evidentiary hearing on the matter.
The second threshold issue, which also must be addressed in an evidentiary hearing, is whether the claim was filed in a timely manner under § 41 and, if not, whether the exculpatory provisions of § 49 apply to "save" the claim. At the time of the employee's injury, § 41 provided that a claim for compensation must be filed "within one year after its occurrence," or any proceeding under the Act was barred. The applicable version of § 49 at the time in question read in pertinent part that a claim, although not brought within the time fixed by § 41, was not barred if failure to make timely claim was the result of "mistake or other reasonable cause, or if it [was] found that the insurer was not prejudiced by the delay." The administrative judge found the 1965 version of § 41 applicable as a matter of law, and that it barred the claimant's claim because it was brought more than four years after the date of injury and death. He further found the claimant failed to prove that exculpatory provisions of § 49, or any one of them, applied to preserve the claim. Yet the verbatim transcript in this case reveals only exchanges between the employee counsel, counsel for the four insurers, and the administrative judge. Assertions by counsel, in the absence of stipulations, sworn testimony or documentary evidence, do not rise to the level of record evidence that may serve as the basis of judicial findings. See O'Connell v. U.S.V. Pharmaceutical, 7 Mass. Workers' Comp. Rep. 56, 59 (1993). No evidence was submitted, nor were any witnesses called. Therefore, the claimant was given no opportunity to present testimony and documentary evidence to meet her burden of proving that the failure, if any, to make claim for injury within the time allowed in § 41 was exculpated by mistake or other reasonable cause, or by lack of prejudice to the insurer(s) under § 49. See Haley's Case, 356 Mass. at 681-682 (1970).
See Acts of 1965, c. 487, § 1.
See St. 1953, c. 572 § 53.
Since both the claimant and the insurers were deprived of due process rights of hearing on the threshold issues of sufficiency of notice and time limitations on filing a claim pursuant to §§ 41 and 49, we vacate the decision. The case is forwarded to the senior judge for reassignment to a new judge who shall hear the case de novo, consistent with this decision.
The judge who heard this case no longer serves as such.
Subsequent to October 21, 1991, the date the attorneys appeared before the former administrative judge, § 7A of the Act was amended effective December 23, 1991, and by St. 1991, c. 398, § 107 deemed procedural in character. As such, the amendment applies retroactively and will have such retroactive application to the issues at hearing de novo. See Pospisil's Case, 402 Mass. 820, 821-822 (1988) (citing Goes v. Feldman, 8 Mass. App. Ct. 84, 88 (1979)); City Council of Waltham v. Vinciullo, 364 Mass. 624, 628 (1974). In our view, the effect of the 1991 version of § 7A is to narrow the scope of the provision by requiring that, as a prerequisite to its operation in cases where the employee is physically or mentally unable to testify, the employee show that any testimonial incapacity is causally related to the injury. We do not read the new language as controlling where, as here, the employee has died. We reach this interpretation after scrutiny of the amended language, in particular, the addition of the words "in the absence of death," which appears to be an introductory clause that limits the scope of the new language requiring that an employee first demonstrate that testimonial incapacity is causally related to the injury before gaining the evidentiary assistance of § 7A. We are also mindful of the well-accepted principles of statutory construction that the intent of the Legislature is to be ascertained from the language considered in connection with the cause of the enactment, the mischief or imperfection to be remedied and the main object to be accomplished, and that an unreasonable result is to be avoided. See Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 3 and cases there cited (1987); Bell v. Treasurer of Cambridge, 310 Mass. 484, 489 (1941). To read the newly inserted language as applying not only where the employee is physically or mentally unable to testify but also where the employee has died would be to render the prima facie effect of § 7A in great part illusory, in contravention of both the provision's specific purpose of assisting those employees who cannot help themselves and the general accomplishment of the Act's beneficent design. See Zavalia v. City of Salem (School Dept.), supra at 279; Young v. Duncan, 218 Mass. 346, 349 (1914). Accordingly, we conclude that the new language of § 7A applies only to those claimants who are alive but unable to communicate, who must prove that their inability to communicate is causally related to the industrial injury. Where the employee is deceased, § 7A operates as it had in the past, as prima facie evidence that the employee was performing his or her regular duties on the date of death.
Section 7A as amended by St. 1991, c. 398, § 21 now provides:
In any claim for compensation where the employee has been killed or found dead at his place of employment or, in the absence of death is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or death and that the claim comes within the provisions of this chapter, that sufficient notice of the injury has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another [emphasis supplied to indicate new language inserted by amendment].
Compare Bechtold v. Compo Industries, 42 Mass. Workers' Comp. Rep 269 272-273 (1988) (prior to the 1991 amendment of § 7A, reviewing board held that the provision does not require that inability to testify have its origins in work).
Since we conclude that § 7A as most recently amended does not require as a precondition to its effect that causal relationship of the employee's death to the work injury be established, the administrative judge may, in the interest of efficiency, wish to bifurcate the hearing. If the judge finds, after hearing testimony and considering documentary or other evidence, that the prima facie effect of § 7A with regard to sufficiency of notice is not met and overcome by evidence produced by the insurer, and that any failure to timely file the claim was due to an exculpatory factor under § 49, the parties should then be heard on the substantive claims.
The decision is vacated and the case recommitted to the senior judge for reassignment and hearing de novo.
So ordered.
Judges Fischel and McCarthy concur.