ARCHER v. TURNER TRUCKING SALVAGE, No. 03655285 (Mar. 7, 1996)


David B. Archer, Employee v. Turner Trucking Salvage, Employer, Guaranty Fund/American Mut., Insurer

Board No. 03655285Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 7, 1996

REVIEWING BOARD DECISION

(Judges Fischel, Wilson and McCarthy)

Kevin S. McCarthy, Esq., for the employer

Robert H. Barry, Esq., for the insurer at hearing

Traver Clinton Smith, Jr., Esq., and Michael P. Giunta, Esq., for the employee/claimant

FISCHEL, J.

The insurer and employer appeal from a decision ordering the payment of c. 152, § 28 double compensation benefits to the employee’s estate, claiming error in the allowance of expert testimony and error in the award of attorney’s fee to the claimant. We affirm the administrative judge’s decision regarding the payment of double compensation but vacate the award of attorney’s fees, since the date of injury was June 17, 1985, and the provisions of c. 152, § 13A(9) apply.[1]

A summary of facts as found by the judge follows. David Archer, the deceased employee, was a 27 year man with a wife and three children. (Dec. 3) Archer began working for the Turner Trucking and Salvage Co. as a demolition laborer in May 1985. (Dec. 3) He had little experience in demolition work. (Dec. 11)

The employer assigned Archer to work on the demolition of the Boston Street Methodist Church. (Dec. 3).

By June 17, 1985 over ninety percent of the church had been demolished, leaving a one story structure consisting of four exterior walls, one partition wall and a ceiling. (Dec. 4). The judge credited the testimony of Delfus Taggert that at the work site that day Jack Viles, the job supervisor, directed Taggert and other workers present “to dismantle the ceiling of the standing structure and begin to remove the stringers (floor joists)” in order to loosen the first floor ceiling. (Dec. 4, 5, 6) Viles then instructed the employee to enter the one-story structure to begin to strip the walls and pick up the wire mesh that was on the ground floor level inside the structure. (Dec. 3, 6).

The judge found that “[i]t was common practice to demolish a building from floor to floor, starting demolition on the top floor and working downward, (but) it was not customary practice to work below a floor which was being demolished.” (Dec. 5)

The judge also found that because of heavy rains on the prior day, the floor weight of the ceiling under which Archer worked had increased by 21% and the plaster in the ceiling had become saturated. (Dec. 4) The judge rejected the testimony of Viles to the effect that he had inspected the building, and noted that Viles had left the job site on an errand, without giving any safety warnings, or putting anyone else in charge in his absence. (Dec. 5, 6)

While Mr. Archer was working inside the structure, the ceiling collapsed on top of him. (Dec. 4) He died of asphyxiation and contusion to the heart. Id. The insurer accepted liability for payment of survivor’s benefits for the compensable injury. (Dec. 2, 3)

Claim was filed for § 28 double compensation benefits, on the grounds that the employee’s death was the result of the serious and wilful misconduct of the employer or his superintendent. We have recently set forth the requisites for a finding of § 28 liability in Smith v. Raytheon, 9 Mass. Workers’ Comp. Rep. 477 (1995).

The administrative judge found that the Employee’s death was due to serious and wilful misconduct under G.L.c. 152, § 28.[2] The administrative judge found that Jack Viles was the person intrusted with and exercising the powers of superintendence during the demolition of the church. She found that the employer and his superintendent had (1) failed to inspect the work site prior to beginning work; (2) failed to have a superior present at all times; (3) left the structure in a dangerous condition; (4) left the site unprotected and unbarricaded in a residential neighborhood over the weekend; and (5) allowed an employee to work inside a building, while the ceiling above was unsupported. (Dec. 10, 12).

The judge found that the superintendent engaged in serious and wilful misconduct when he “instructed Mr. Archer to start ripping the walls, which were below the unsupported ceiling” Dec. 13) She found that Viles’ instructions to Acher and Taggert were in total violation of regulations prohibiting an employee from working inside a building while the ceiling is unsupported. (Dec. 13) The judge found that Viles should reasonably have known that an unsupported ceiling is substantially more likely to collapse than one that is supported, and that Viles acknowledged that to allow employees to work on any level of a structure beneath a level upon which others were working posed a great danger of an unplanned collapse. (Dec. 13) The judge found that the supervisor’s conduct reflected a reckless disregard for the safety of Turner Trucking employees, and that the employee’s death was a direct result of this serious breach of regulations. (Dec. 13)

The judge correctly pointed out that while “disregard of safety regulations by itself is not sufficient to establish misconduct, regulatory violations taken together with the ability to know of facts which would lead a reasonable man to realize that his conduct created an unreasonable risk of physical harm to another or that there was a high degree of probability harm would result” could support a finding of § 28 liability. (Dec. 10-11) SeeSmith v. Raytheon, supra. In Smith we observed that the purpose of § 28 is to encourage employers to engage in safe practices and take reasonable care to ensure that the workplace not operate in reckless disregard of the safety of workers. Id. at 482.

Expert Testimony Issues

The employer raises a number of issues with regard to the judge’s allowance of opinion testimony by Arnold Haight, a construction supervisor with over forty years of experience, whom she qualified as a construction expert. (March 23, 1993 Tr., 71-84.) Mr. Haight testified as to the employer’s failure to comply with various Occupational Health and Safety Administration regulations, as well as Massachusetts construction and demolition regulations. Mr. Haight was present for all of the testimony at hearing, and the subject regulations were placed in evidence. (March 23, 1993 Tr. 80; Employee’s Exhibits 5-8.)

Mr. Haight opined that five separate safety concerns were raised by the facts of the case, and commented on how the various federal and state regulations were implicated. The safety concerns that Mr. Haight described were 1) failing to inspect the work site prior to beginning work (OSHA § 1926.850; 441 CMR 10.10 (7)); 2) failing to have a supervisor present at all times (780 CMR 2.21, 2.15.2); 3) leaving the structure in a dangerous condition over the weekend, with the risk that it could collapse due to exposure to the elements (441 CMR 10.09 part C); 4) leaving the site unprotected and unbarricaded in such a state (780 CMR 1306.1, 2 and 3); and 5) allowing an employee to work inside a building while the ceiling was unsupported, and in the process of demolition (441 CMR 10.03 (1)(a) and (b)). Mr. Haight opined that the demolition project had been run in a very negligent manner, and that all of the above-cited safety regulations had been violated. The judge adopted Mr. Haight’s opinion. (Dec. 8, 11.)

The employer first argues that expert testimony regarding the demolition work was inadmissable because this case did not involve facts that were of a technical nature beyond the scope of ordinary experience. We do agree that the pertinent facts underlying this case — the assignment of an employee to do work on the first floor while the second floor is being demolished — concern the operation of established principles and circumstances to which [the fact-finder] could apply [her] own knowledge and experience.”Stimpson v. Wellington Service Corp., 355 Mass. 685, 691 (1969). Nevertheless, this means that the proffered expert testimony was not necessary for the proof of the claimant’s case, not that it was inadmissable. See Id. (expert testimony not required, but admissable, to support inference of damage occurring on one end of buried pipe as a result of overloaded truck driving over other end). “[E]xpert testimony on matters within the witness’ field of expertise is admissable whenever it will aid the [fact-finder] in reaching a decision. . . .” Simon v. Solomon, 385 Mass. 91, 105
(1982). Accord Adams v. U.S. Steel Corp., 24 Mass. App. Ct. 102, 105 (1987)(judge’s exclusion of expert testimony regarding dangerousness of hole in parking lot was upheld as judge “reasonably could have taken the view’s that it would not benefit fact-finders);Coyle v. Cliff Compton, Inc., 31 Mass. App. Ct. 744, 750
(1992) (judge has wide discretion in determining issue of whether opinion testimony will assist fact-finder). We do not think that the judge’s consideration of the expert’s opinion is subject to reversal on this ground.

The employer next argues that the judge erred in qualifying the expert, because he lacked special knowledge and experience regarding demolition operations. It is well settled that a judge’s decision whether to qualify an expert will rarely be upset on review. See Cronin v. McCarthy, 22 Mass. App. Ct. 448, 449
(1986). We think it was within the judge’s discretion to conclude that the construction expertise of Mr. Haight was sufficiently related to the demolition work at issue as to render his opinions helpful in the judge’s assessment of the evidence. See Lovasco v.Parkhorse Marine Ry., 322 Mass. 64, 67 (1947). We will not overturn the judge’s qualification of the expert.

The employer further argues that the expert’s opinions, even if qualified, were based on an inadmissable hearsay foundation. An expert’s testimony may “be based on either the expert’s direct personal knowledge, or evidence already in the record . . . or on a combination of these sources.” LaClair v. Silber line Mfg. Co.,379 Mass. 21, 32 (1979). Moreover, it is permissible for “an expert to base an opinion on facts or data not in evidence if the facts or data are independently admissable and are a permissible basis for an expert to consider in formulating an opinion.” Dept.of Youth Services v. A Juvenile, 398 Mass. 516, 531 (1986). In the instant case, the expert was present for and heard all of the testimony at hearing prior to giving his own testimony. His testimony was also based on applicable construction safety regulations, all of which were in evidence. As the expert’s opinion was firmly grounded in the evidence adduced at trial, whatever error might have occurred in regard to his consideration of some hearsay sources is harmless. See Chapman’s Case, 321 Mass. 705, 712 (1947) (even if technically inadmissible because it was a conclusion . . . the admission of this evidence is too insubstantial to require a reversal of the decision of the board under the rule established in workmens’ compensation cases); and see Caccamo’sCase, 316 Mass. 358, 363 (1944) (erroneous admission of hearsay in document too insubstantial to constitute ground for reversal) We do not think any substantial rights of the employer were materially affected by any strains of hearsay that might have infiltrated the foundation of the opinion. This is not a case such asGrant v. Lewis/Boyle, Inc., 408 Mass. 269 (1990), in which the admission of expert testimony introducing the diagnoses of nontestifying doctors was ruled error, since those diagnoses went directly to and contradicted contentions central to the opposing party’s case. Id. at 274-275. In that case, the objectionable aspect of the opinion was the backdoor admission of those out-of-court diagnoses into evidence. There is nothing of that nature in this case, in which the various reports and witness statements were not described in any detail in the expert’s opinion.[3]

The employer finally argues that the judge allowed the expert impermissibly to testify as to conclusions of law, thereby relinquishing her fact-finding role. It is true that the expert described the content of and commented upon various construction and demolition safety regulations and codes that were pertinent to the case. However, it is not error for an expert to offer opinion testimony regarding violations of safety regulations, even though that opinion may touch on the ultimate facts to be decided. SeeHenderson v. D’Annolfo, 15 Mass. App. Ct. 423 [15 Mass. App. Ct. 413], 430 (1986). “We cannot say that expert testimony applying [state and federal construction safety] Rules and Regulations would not assist the [judge], or that the judge abused [her] discretion in permitting such testimony.” Eagan v. Marr Scaffolding Co., 14 Mass. App. Ct. 1036-1037 (1982). As the court made clear in Dibiasi v. Town ofRowley, 33 Mass. App. Ct. 928, 929 (1992), it is proper for the expert to give his understanding of what the baseline criteria for the application of the pertinent regulations were. See Eagan,supra (whether case came within purview of regulations was question of fact, not of law, and therefore appropriate for expert opinion). This is not a case such as S.D. Shaw Sons v. JosephRego, Inc., 343 Mass. 635, 639 (1962), in which the expert opinion was properly excluded because it constituted a pure legal conclusion as to the scope of a contractual provision. Likewise isPerry v. Medeiros, 369 Mass. 836 (1976) distinguishable. There a building code violation — the lack of a landing outside of a door at the top of a stairway — was arguably a direct contributing cause of the plaintiff’s fall down the stairs. Id. at 841-842. The court held that opinion testimony of the building inspector was properly excluded since it was the function of the jury to determine whether there was a violation of the code, and its effect on the facts as found. Id. at 842.

In the instant case, the judge made specific and independent general findings that determined the issue of whether the facts amounted to conduct that was in reckless disregard of the employee’s safety. (Dec. 10-13.) See Restatement (Second) of Torts, § 500 (1965). We cannot say that the judge abused her discretion in reaching her conclusion with the assistance of the expert’s opinion. See Henderson, supra; Eagan, supra.

Attorney’s Fee Issue

We address the attorney’s fee issue raised by each of the parties. In the case at bar, the employee was injured prior to November 1, 1986 and was aggrieved by the Conference order of April 1, 1992 which denied payment of benefits under G.L.c. 152, § 28, and thereafter requested a hearing by means of appealing the Conference Order. The judge heard the case at trial on December 4, 1992, March 23, 1993 and April 28, 1993, rendering a decision on November 30, 1993. In her order, fee in the amount of $4000.00 was awarded to counsel, to be paid by the insurer. (Dec. 14).

The insurer on appeal raises the issue that it was improper to award the claimant’s counsel an attorney’s fee in the amount of $4,000.00 plus expenses. (Employer’s Brief, p. 24). The insurer contends that G.L.c. 152, § 13A(9) applies to the injury in this case, and that under that section, where the employee filed the appeal from conference, the insurer is not responsible for payment of fee to employee’s counsel. G.L.c. 152, § 13A(9) addresses the payment of attorney’s fees with regard to injuries occurring prior to November 1, 1986.[4]

When an employee appeals a conference order and prevails at hearing, pursuant to G.L.c. 152, § 13A(9), any fee “shall be of an amount agreed upon between the employee and the attorney.”[5] SharonMcCarthy v. Charette Corporation, 9 Mass. Workers’ Comp. Rep. ___ (June 2, 1995); Gromley v. Mike’s Truck Stop,
8 Mass. Workers’ Comp. Rep. 160, 161 (1994).

The claimant cross-appeals on the issue of the attorney’s fee, arguing, like the insurer, that the $4000 award was erroneous. However, the claimant contends that § 13A(5) applies to the case and that the last sentence of § 13A(5) is controlling. That subsection provides:

Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee’s claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; to (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee’s attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney. (Emphasis added.)

The claimant contends that where the hearings were conducted and the work of counsel on this matter was performed after December 23, 1991,[6] the insurer should be responsible for the fee for services rendered after that date. He contends that the effort expended in prosecuting this § 28 claim warranted a higher fee than the $4000 awarded, as a matter of law.

The claimant is correct that the threshold qualifications for the application of § 13A(5) were met, namely that the insurer contested the claim, and the claimant prevailed at hearing. Section 13A(5) provides that an insurer’s contest of an employee’s claim that goes to hearing, with the employee prevailing, results in the insurer paying attorney’s fees of $3500, with the allowance of the judge ordering more or less. Conversely, § 13A(9) provides for no fee to be paid by the insurer, except when the insurer brings the complaint to discontinue, or appeals the conference order to hearing, when the date of injury precedes November 1, 1986.

The core of the issue raised is whether the conflicting provisions of §§ 13A(5) and 13A(9) can be harmonized, and if not, which provision should control the attorney’s fee for an employee’s claim and appeal of the conference order with a date of injury prior to November 1, 1986, and services performed after December 23, 1991, as in the instant case? There seems to be no real way to harmonize the provisions of the two subparts of § 13A under the circumstances of this case. The issue then becomes which of the subsections of § 13A applies to this case. These provisions are treated identically in the “outside sections” governing the retroactive/prospective applicability of all of the 1991 amendments. St. 1991, c. 398, § 103. (See footnote 4) As we noted, legal services in this case were, in fact, performed after the December 23, 1991 effective date of St. 1991, c. 398. Both provisions are included, by omission from the specific listings in §§ 104, 105 and 106, in § 107’s characterization of all sections of St. 1991, c. 398 as procedural, and therefore, retroactive. What we are left with are statutory directives that say 1) use § 13A(5) to award a fee to be paid by the non-prevailing insurer, and 2) use § 13A(9) not to award a fee under exactly the same circumstances.

We must resort to the maxim of statutory construction that the section which addresses the facts at hand most specifically prevails over a more generally applicable section. The salient fact here is that § 13A(9) is time limited — applying to all claims with dates of injury prior to November 1, 1986 — and § 13A(5) is not. Under these circumstances:

Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy, between them, the special statute, or the one dealing with the common subject matter in a minute way, will prevail over the general statute.

82 C.J.S. § 369. The S.J.C. has expressed this “rule”. SeeClancy v. Wallace, 288 Mass. 557, 564 (1934) (special law regarding validity of election recount which applied solely to City of Lynn was operative notwithstanding inconsistent general law covering same subject matter). We thus conclude that we must allow the more definite provisions of § 13A(9) to prevail over those of § 13A(5). We therefore vacate the award of a fee to be paid by the insurer. Counsel and the claimant may agree on a fee pursuant to the provisions of § 13A(9), and if unable to agree, may seek a conference on the issue before the department pursuant to 452 CMR 1.19 (8).

So ordered. ________________________ Carolynn N. Fischel Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge

________________________ Sara Holmes Wilson Administrative Law Judge Filed: March 7, 1996

[1] The claimant cross-appeals on the issue of the attorney’s fee. We address and dispose of the employee’s argument for a higher fee award, infra.
[2] General Laws c. 152, § 28 provides in pertinent part:

If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly entrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled.

[3] We note from our review of the record that, when the expert did testify in any detail as to the content of any of the hearsay documents at issue, the insurer moved successfully that the response be struck. See April 28, 1993 Tr. 49-50.
[4] M.G.L.c. 152, § 13A(9) states:

In any hearing or review requested by an insurer aggrieved by an order or decision with respect to an injury occurring prior to November first, nineteen hundred and eighty-six or in a proceeding brought by an insurer or self-insurer as to the continuance of compensation being paid under this chapter for an injury occurring prior to November first, nineteen hundred and eighty-six, there shall be awarded an amount sufficient to compensate the employee for the reasonable costs of such hearing review or proceeding including reasonable counsel fees and expenses, provided that the employee prevails at such hearing review or proceeding. Such amounts shall be paid by the insurer. Any other attorneys’ fees or services provided claimants for injuries prior to November first, nineteen hundred and eighty-six, shall be of an amount agreed upon between employee and attorney.

[5] 452 CMR 1.19 (8) provides that “for injuries occurring before November 1, 1986, fees of attorneys for representation of employees under M.G.L.c. 152, shall be subject to the approval of an Administrative Judge or Reviewing Board. If the employee and attorney cannot agree as to the attorney’s fee, either party may notify the Division of Dispute Resolution which shall assign the case for a conference and or hearing”.
[6] The “outside sections” governing the retroactive/prospective applicability of all of the 1991 amendments. St. 1991, c. 398, § 103 states:

Notwithstanding the provisions of § 2A. . .subsections (1) and [sic] (9), inclusive, and subsection (11) of § 13A. . . shall apply to all services performed after the effective date of this act.