Board Nos. 02728292, 02742992, 03097892, 09564788Commonwealth of Massachusetts Department of Industrial Accidents
Filed: July 7, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine)
John K. McGuire, Jr., Esq., for the employee.
David M. Graham, Esq., for American Universal.
John F. Hurley, Esq., for Liberty Mutual (TAC Temps), at hearing.
Thomas E. Fleischer, Esq., for Liberty Mutual (Digital), at hearing.
The insurer, American Universal/Guaranty Fund, appeals from the decision of an administrative judge who found liability for the employee’s back injury and awarded weekly benefits for temporary total incapacity from March 18, 1988 to May 31, 1990 and for temporary partial incapacity from June 1, 1990 to February 15, 1991. Because the decision fails to address an issue raised by this insurer, we recommit the case for further findings.
Afua Adjeman was forty-five years old at the time of hearing, and was schooled through the twelfth grade in her native Ghana. She began her employment as a nurses’ aide at the Jewish Home for the Aged in 1981. On June 18, 1984, she fell on, her back while moving a patient, causing back pain radiating down her legs. She reported the incident to her head nurse that same day, but continued to work. She sought treatment a few weeks later. (Dec. 5.)
On July 22, 1984, the employee again fell at work, experiencing the same pain as followed the first fall. She filled out an incident report, as she had following the June fall, but continued to work despite persistent back pain. (Dec. 6.)
In August 1984, the employee ended her employment at the Jewish Home and began working for TAC Temps, an employment agency that placed her at Digital Equipment. Her job involved working at a microscope as a quality inspector. She became a permanent employee of Digital on April 20, 1987, performing the same job duties. She left her employment at Digital on March 18, 1988, due to persistent back pain that she experienced continually since her employment at the Jewish Home. (Dec. 5-6.)
On January 6, 1989, she underwent decompression and fusion surgery for a L4-5 ruptured disc. Thereafter she underwent physical therapy and was able to return to work at Digital on February 15, 1991. (Dec. 7.)
The Department forms reveal that in October 1990 and August 1992, the employee filed four claims with four dates of injury against three insurers, none of which were accepted. All claims were denied at a consolidated conference. (Tr. 3-5.) The employee appealed and, subsequent to a hearing de novo, the administrative judge issued a decision that established liability for injuries suffered on June 18, 1984 and July 22, 1984, and ordered American Universal, as insurer for the Jewish Home for the Aged, to pay § 34 weekly benefits from March 18, 1988 until May 31, 1990 and § 35 weekly benefits from June 1, 1990 to February 15, 1991. (Dec. 8.)
American Universal contends that the administrative judge (1) failed to make findings of fact as to all the medical evidence; (2) failed to make adequate findings on the issue of notice; and (3) erred in failing to address the issue of claim as set forth in §§ 41 and 49 of the Act and raised by the insurer as a defense. We find merit in the last of these arguments.
General Laws c. 152, § 49, applicable to this date of injury, states:
The claim for compensation shall be in writing and shall state the time, place, cause and nature of the injury. It shall be signed by the person injured, or, in the event of his death, by his legal representative, or by a person to whom payments may be due, or by a person in behalf of any of them, and shall be filed with the division. A claim for compensation shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place, cause or nature of the injury unless it is shown that it was the intention to mislead and that the insurer was in fact misled thereby. Failure to make a claim within the time fixed by section forty-one shall not bar proceedings under this chapter if it is found that it was occasioned by mistake or other reasonable cause, or if it is found that the insurer was not prejudiced by the delay. In no case shall failure to make a claim bar proceedings if the insurer has executed an agreement in regard to compensation with the employee or made any payment for compensation under this chapter.
St. 1923, c. 125, as amended by St. 1953, c. 314, § 6 (emphasis added).
General Laws c. 152, § 41, applicable to this date of injury, states:
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 the 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. 1929, c. 326, § 2, as amended by St. 1965, c. 487, § 1.
The judge found that the employee sustained injuries in 1984 and notified her employer by filing contemporaneous incident reports. In March 1988, she left work due to her persistent pain and, on January 6, 1989, underwent surgery for a ruptured disc at L4-5. She did not file her first claim until 1990, clearly outside the one year window established by § 41. It is possible that reasonable cause exists for the employee’s delay in filing her claim, but the decision neither addresses any exculpatory factors nor lists the defense of timely claim, although it was raised by the insurer on its issues sheet and acknowledged by the judge at hearing. (Tr. 4.) Pursuant to G.L.c. 152, § 11B, the administrative judge is to “set forth the issues in controversy, make the decision on each and a brief statement of the grounds for each such decision.” Accordingly, we recommit the case for further findings.
In all other respects, the decision of the administrative judge is summarily affirmed.
___________________________ Sara Holmes Wilson Administrative Law Judge
___________________________ Carolyn N. Fischel Administrative Law Judge
___________________________ Frederick E. Levine Administrative Law Judge
Filed: July 7, 1997