Workers’ Compensation Summary of Reviewing Board Cases – September, 2016

Penalties Section 8(1)

Cornelia DeLeon v. Department of Correction MASAC, ____ Mass. Workers Comp. Rep. ____ (Horan, J. 9/22/2016). The Self-Insurer appealed a decision awarding a Section 8(1) penalty for the Self-Insurers failure to make timely payments. The Parties entered into an agreement whereby the Self-Insurer would pay $14,000 in Section 36(k) benefits (a compromised amount), and a $1,000 attorneys fee under Section 13(A). Relying on payment reduction under Section 13A(10) and 452 Code Mass. Regs. Section 1.02, the Self-Insurer reduced the amount due to the employee by the amount of the attorneys fee. The employee filed a claim seeking a Section 8(1) penalty and the $1,000 that had been offset by the Self-Insurer.

The Reviewing Board affirmed the decision, opining that the law in effect at the time the Self-Insurer failed to pay was Spaniols Case, 81 Mass. App. Ct. 437 (2012), which found that the Self-Insurer did not accept the employees Section 36 claim because it was a compromised amount, and therefore did not satisfy that element of Section 13A(5). As the attorneys fee was not paid under Section 13A(5), the reduction provision of Section 13A(10) did not apply.

The Reviewing Board also noted that the Supreme Judicial Court later rejected this rationale from the Appeals Court and adopted a broader view preventing the application of 13A(10) to Section 36 claims generally, and this case was the law at the time the Employee filed the Section 8(1) claim. A penalty in the amount of $10,000 was upheld because payment was ultimately made more than ninety (90) days after payment was required.

Section 1(7A)

Lilliane Cummings v. City of Pittsfield, ____ Mass. Workers Comp. Rep. ____ (Calliotte, J. 9/22/2016). The employee appealed a decision denying her Section 13 and 30 benefits arguing the Administrative Judge made inconsistent and contradictory findings. The Insurer raised Section 1(7A) as an affirmative defense at hearing. It was stipulated that the industrial accident occurred. The Administrative Judge credited and adopted the employees dentists opinion, however also stated that the dentist was unclear as to the relationship between the work accident and the medical treatment necessary. Also, the Administrative Judge credited the employees testimony with regard to the accident, follow-up care and her timely reporting, but did not find her to be a credible historian. The employee argued that the Administrative Judges opinion was arbitrary and capricious as she adopted the injury as a major cause, while also finding no competent medical evidence supporting the claim.

The Reviewing Board remanded the matter because they could not tell whether the dentists opinion was adopted or not, and could not understand the causal relationship findings. The Reviewing Board also asked for a Section 1(7A) analysis as described in Vieira v. DAgostino Assocs., 19 Mass. Workers Comp. Rep. 50 (2005).

Section 25A(2)

Two cases addressed Section 25A(2). These cases involve the specific facts surrounding the now insolvent Self-Insurer Polaroid Corp., Inc.s bond with Greenwich Ins. Co. (satisfying Section 25A(2)(b)) and reinsurance with Travelers Surety & Insurance Company (satisfying Section 25A(2)(c)). These cases are: Nicklaus J. Ward v. Polaroid Corp., Inc., __ Mass. Workers Comp. Rep. ____ (Koziol, J. 9/6/2016) and Theodore Van Sickle v. Polaroid Corp., Inc., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 9/7/2016). In both cases, the Administrative Judge ordered the Workers Compensation Trust Fund (WCTF) to pay the employees benefits, and the Special Polaroid Fund to reimburse the WCTF. The WCTF appealed. The Reviewing Board vacated both the order requiring the WCTF to pay benefits, and the Special Polaroid Fund obligation to reimburse the WCTF. The Reviewing Board ordered that the Reinsurer pay the benefits required.