BOARD No. 84922-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: February 28, 1996
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy and Fischel)
APPEARANCES
Mark D. Sullivan, Esq., for the employee
Terence H. Buckley, Esq., for the insurer
WILSON, J.
The employee appeals from a decision in which the administrative judge assessed penalties against her, pursuant to G.L.c. 152, § 14(2), for engaging in fraudulent activity. Because the judge did not specifically address the statutory requirements of showing a knowing fraud under § 14(2), we vacate the order made pursuant to § 14(2) and recommit the case for further findings.
The employee injured her back while working with cognitively impaired patients at Monson Development Center in 1989. The insurer accepted the claim, and paid § 34 temporary total incapacity benefits and § 30 medical benefits. The insurer requested discontinuance, which complaint went to conference on January 4, 1993. The judge allowed the discontinuance, and the employee appealed to a hearing de novo. As a defense to the employee’s appeal, the insurer alleged § 14 fraud on the part of the employee. (Dec. 2-3.)
At hearing the employee testified regarding her present pain, restrictions in daily life activities and inability to return to her former occupation or work more than two hours per day. The administrative judge, however, did not find her credible as to the extent of her limitations. (Dec. 5.) The employee also testified that in 1992, she was having severe symptoms, she discussed her depression with her physical therapist and treating physician, and that taking up a hobby had been suggested. She testified that she had asked about playing pool and, being cleared to do so, played pool once a week at the Master’s Billiard Academy, but did not remember when she began playing. (Dec. 3-5.)
The insurer introduced evidence that the administrative judge found indicated the employee had been playing pool as early as December 1991, when she placed third in a tournament at Master’s Billiard Academy, (Insurer’s Ex. A.), and that the employee had played approximately 100 games at Master’s Billiard Academy as of March 1992. The insurer also introduced a videotape that a private investigator had taken at Master’s Billiard Academy on April 28, 1992, which showed the employee walking without favoring either leg, bending to nearly ninety degrees, and moving without any indication of pain. (Dec. 5-6; Insurer’s Ex. B.)
The employee underwent a medical examination pursuant to G.L.c. 152, § 11A. In his report, the § 11A examiner observed that the employee walked favoring her left leg, and had tenderness in the area of the L4-5 and L3-4 discs. The impartial physician opined that the employee was still disabled from returning to work. (Dec. 5.)
The judge did not adopt the § 11A examiner’s opinion that the employee was unable to return to work. The judge found instead that the insurer’s videotape, the testimony of the insurer’s investigator and documentary evidence was substantial evidence sufficient to overcome the prima facie effect of the § 11A examiner’s opinion on the extent of the employee’s medical disability.[1] The judge concluded, based on all the evidence and his finding that the employee was not entirely credible, that the employee was capable of returning to work as of April 28, 1992, the date of the videotaped activity. The judge further concluded that the employee had engaged in fraudulent activity by collecting workers’ compensation benefits after she was no longer disabled. (Dec. 6-8.) He ordered that the insurer discontinue benefits as of April 28, 1992, and that the employee pay the insurer $3,259.80 as a penalty, as well as an attorney’s fee and costs in the amount of $4,500.00, pursuant to the provisions of G.L.c. 152, § 14. The judge forwarded the decision to the Senior Judge of the Department of Industrial Accidents for referral to the Insurance Fraud Bureau for appropriate criminal action under § 14. (Dec. 8-9.)
The judge’s conclusion that the employee was engaged in fraudulent activity by continuing to collect workers’ compensation benefits beyond the date that the investigative video tape was taken is not based on sufficient subsidiary findings of fact. The judge recites the testimony of the employee without making specific and definite findings of fact, which are essential for the reviewing board to determine with reasonable certainty whether correct rules of law have been applied. Judkins’s Case, 315 Mass. 226, 227 (1943); Ballard’s Case, 13 Mass. App. Ct. 1068, 1069 (1982), and cases cited therein. In order to find that a participant in a proceeding has engaged in fraud within the scope of § 14(2), the judge must set out specific and definite findings of fact on the evidence presented that apply to one or more of the several elements set forth in that section. These elements are that a participant in the proceeding “concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly used perjured testimony or false evidence, knowingly made a false statement of fact or law, participated in the creation or presentation of evidence which he knows to be false, or otherwise engaged in conduct that such party knew to be illegal or fraudulent. . . .” G.L.c. 152, § 14(2).
From the judge’s findings we might infer that he believed that the employee knowingly made false statements of fact and presented false evidence regarding the circumstances around the commencement of her pool playing, the amount of time she spent playing pool, and her physical limitations and expressed incapacity for work, as compared to the videotape showing her playing pool with no apparent limitations. (Dec. 4-5; Tr. 27-30, February 23, 1993.) However, we will not infer the necessary facts underlying the judge’s conclusions unless it is clear that “no reasonable inference could be drawn to the contrary.” Judkins’s Case, supra, quoting Craddock’s Case, 310 Mass. 116, 125 (1941). We ask the judge to make subsidiary findings as to the specific factual basis for his conclusion that the employee “was engaged in fraudulent activity when she collected workers’ compensation benefits when she was no longer disabled.” (Dec. 8.) In particular, the judge must indicate the basis for an inference of intentional malfeasance on the part of the employee — that the alleged fraudulent activity was “knowing” within the meaning of § 14(2). We therefore vacate the order under § 14(2) and recommit this case for further findings of fact in accordance with this decision.
We see no error with regard to the employee’s remaining contentions that the administrative judge failed to assign prima facie
status to the impartial examiner’s report and improperly excluded testimony of the treating physician,[2] and accordingly affirm the order of discontinuance and recoupment.
So ordered.
_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
__________________________ William A. McCarthy Administrative Law Judge
Filed: February 28, 1996