BLAIS v. GALLO CONSTRUCTION CO., No. 049216-03 (Oct. 11, 2011)

No. 049216-03.Commonwealth of Massachusetts Department of Industrial Accidents
October 11, 2011.

REVIEWING BOARD DECISION

(Judges Costigan, Horan and Levine)

The case was heard by Administrative Judge Chadinha.

APPEARANCES

Michael A. Rudman, Esq., for the employee at hearing and on appeal

Robert Deschene, Esq., for the employee on brief

James E. Ramsey, Esq., for the insurer at hearing and on appeal

Erin M. Mullen, Esq., for the insurer on brief

Clyde K. Hanyen, Esq., for the employer

COSTIGAN, J.

The employee appeals so much of the administrative judge’s decision as denied and dismissed his claim for weekly incapacity and medical benefits for severe injuries sustained when a former co-worker assaulted him with a baseball bat. The employee argues the administrative judge erred in finding the assault did not occur on the employer’s premises, as he alleged, and that it did not arise out of his employment.[1] The insurer appeals the judge’s denial of its

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recoupment complaint, [2] and further argues the judge failed to address its claim for § 14 penalties against the employee. We affirm the decision.

The Assault
The parties stipulated that an employee/employer relationship existed between Mr. Blais and Gallo Construction (Gallo) on November 22, 2003, the date of the assault. (Dec. 3.)[3] The employee worked as a heavy equipment operator, installing septic systems, and also performed the duties of a construction laborer. The employee claimed, however, that he was also employed as a night watchman for Gallo, and was working in that capacity when he was assaulted on the employer’s premises. (Dec. 4-5.) Based in large part on credibility determinations, the judge found:

I believe that Mr. Blais is convinced that the assault occurred on Gallo property. Unfortunately, there is no evidence to support that conviction other than the employee’s assertions. The physical evidence discovered by Detective Spencer as well as his prior police experience led him to opine that it took place in the rear of 81 Paul Bunker Drive. The assailant’s own admission that the beating occurred there, as well as Blais’ initial report as [to] its whereabouts also lead to a finding that the claimant’s injury did not take place on the property owned by Gallo Construction but occurred behind the premises located at 81 Paul Bunker Drive.

. . .

Be that as it may, the employee’s injury might still be compensable if his employment brought him in contact with the risk that in fact caused his injuries. In this particular matter, I find that it did not.

(Dec. 6-7.) The judge found that the employee and his assailant were “well acquainted with each other,” (Dec. 8), and the “attack was not a random occurrence,” but rather premeditated, stemming from an encounter earlier in the day between the employee and the assailant’s girlfriend. In other words, it was “the result of an inherently private affair.” (Dec. 9.) See McLean-Jenner v. Beverly Manor of

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Plymouth Nursing Home, 12 Mass. Workers’ Comp. Rep. 513, 514 (1998) (assault does not arise out of the employment when source of death or injury is a dispute imported into the employment from employee’s private or domestic life). The judge further found that even if the assault had occurred on the employer’s premises, “that would have been pure happenstance,” having nothing to do with the employee’s work and everything to do with his “prior difficulties with [the assailant’s] girlfriend.” (Dec. 9.)

The employee introduced no evidence that anything work-related caused him to be at 81 Paul Bunker Drive. He identified no circumstances or incidents attendant to his employment that provoked the assault. The judge found there was no evidence to support the employee’s belief and testimony that the assault occurred on the employer’s premises. (Dec. 6.) Even the assailant testified he assaulted the employee on the Paul Bunker Drive property, which the judge found was a considerable distance from the employer’s premises.[4] In any case, anchored as they are in his credibility determinations, the judge’s findings are unassailable. “Credibility determinations are the sole province of the hearing judge, and we will not disturb them when, as here, they are based on the evidence and reasonable inferences drawn therefrom.” Ormonde v. ChoiceOne Communications, 24 Mass. Workers’ Comp. Rep. 149, 153 (2010). We affirm the decision denying and dismissing the employee’s claim.

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The Insurer’s Recoupment Complaint
The insurer contends the judge’s denial of its recoupment complaint under § 11D(3), [5] was arbitrary, capricious and contrary to law. The insurer acknowledges that when, as here, there are no ongoing weekly incapacity benefits from which the insurer may unilaterally recover overpayments, the method of recoupment of an overpayment lies in the sound discretion of the judge.[6] (Ins. br. 17.) However, the insurer ignores the fact that under the same circumstance, the judge has discretion to allow the insurer recovery of none, some or all of the benefits paid prior to the hearing decision. Brown v. Highland HouseApartments,

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12 Mass. Workers’ Comp. Rep. 322, 325 (1998). Whether to order recoupment is a matter entirely within the judge’s discretion. Murphy’sCase, 53 Mass. App.Ct. 424, 429 (2001); Anderson v. D D Contrs., 23 Mass. Workers’ Comp. Rep. 73, 83 (2009); Brown, supra; Beal v.City of Newton, 9 Mass. Workers’ Comp. Rep. 248, 251 (1995).

“[S]ubsidiary findings on recoupment are necessary where an overpayment occurs which cannot be recouped by the insurer’s unilateral reduction of benefits under § 11D.” Anderson, supra at 83. The judge wrote:

This is truly a difficult matter. The employee presents as a credible and highly sympathetic witness. There is no question that the injuries he received as a direct result of this attack were extremely severe. He will suffer difficulties from them long into the future. However, the law is clear. Therefore, based on all the credible evidence before me I am required to find as a matter of law that the employee’s injury did not arise out of his employment with Gallo Construction and his claim must therefore be dismissed.
Given my prior findings, I deny the insurer’s request for penalties under Sections 8 and 27. Additionally, I deny the insurer’s request for recoupment under Section 11 given the stipulation of the parties regarding the employee’s permanent and total incapacity and given that there is no evidence regarding any assets in the possession of the employee.

(Dec. 10.)

The insurer argues the judge considered only the employee’s apparent inability to pay back the benefits he received pursuant to the 2005 conference order, and did not weigh other equitable factors, i.e., the culpability of the employee, the employer’s negligence, possible hardship to the employee, and the amount of the overpayment. (Ins. br. 17.) Although the insurer cites Corbitt’s Case, 69 Mass. App.Ct. 1117 (2007) (Memorandum and Order Pursuant to Rule 1:28), citing Murphy’s Case,supra at 430, as support for its argument, (Ins. br. 17), these equitable factors are not mentioned in either decision. Rather, they are noted by the reviewing board as the “competing considerations” a judge should weigh in determining whether to order recoupment when overpayments were made without a conference order, that is,

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voluntarily or by mistake of the insurer.[7] See Brown, supra at 326. The overpayment in this case resulted solely from the § 10A conference order.

Nothing could be more fundamental to the issue of recoupment than the employee’s ability or, as here, inability to repay the overpayment. The judge cited to the stipulation of the parties that the employee is permanently and totally incapacitated from gainful employment, and noted the lack of evidence of assets that could be reached by the insurer. No further analysis was necessary. We affirm the judge’s denial of the insurer’s recoupment complaint.

The Insurer’s Claim for § 14 Penalties
The insurer argues the judge “erred as a matter of law when he did not address [the] insurer’s request for § 14 penalties.” (Ins. br. 13.) The insurer correctly notes that it sought penalties under §§ 14(1), (2) and (3), [8] (Dec. 3; Ins. Amended Ex. 1), but

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contends the judge failed to make specific findings addressing its claim. It is true the judge’s determination was sparse: “Given my prior findings, I deny the insurer’s request for penalties under Sections 8 and 27.” (Dec. 10; emphasis added.) The problem with that statement is the insurer never claimed penalties under § 8.[9] (Dec. 3; Ins. Amended Ex. 1.) We consider the judge’s reference to § 8 a scrivener’s error, and that it was the judge’s intent to deny the claimed § 14 penalties. His reasons for doing so are based on his assessment of the employee’s credibility: “I believe that Mr. Blais is convinced that the assault occurred on Gallo property.” (Dec. 6.) “The employee presents as a credible and highly sympathetic witness.” (Dec. 10.) Quite simply, the judge found no intent on the part of the employee to lie about or misrepresent the circumstances of his employment, his injury, and the monies he received post-injury from William Phaneuf, or to prosecute his claim without reasonable grounds.[10] There is no error.

Accordingly, we affirm the decision as to the appeals of both the employee and the insurer. Because the employee has prevailed against the insurer’s appeal, pursuant to § 13A(6), we direct the insurer to pay employee’s counsel an attorney’s fee of $1,517.62.

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So ordered.

______________________________ Patricia A. Costigan Administrative Law Judge
______________________________ Mark D. Horan Administrative Law Judge
______________________________ Frederick E. Levine Administrative Law Judge

Filed: October 11, 2011

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