BOARD NO. 49094-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: August 22, 1996
REVIEWING BOARD DECISION
(Judges Fischel, Kirby and Wilson)
APPEARANCES
Ronald W. Stoia, Esq., for the employee
Andrew P. Saltis, Esq., for the insurer
FISCHEL, J.
The employee appeals the decision of the administrative judge which denied and dismissed his claim for failure to give timely notice of injury pursuant to G.L.c. 152, § 41. The employee contends that the decision was based on incorrect application of the law, and thus error. We agree, and therefore, reverse the decision and remand the case for further findings consistent with this opinion.
On October 12, 1971, the employee sustained an industrial injury to his lower back while bending to lift a heavy piece of metal. (Dec. 3.) As a result of his injury, he was incapacitated from work until July 9, 1972, and the insurer voluntarily paid G.L.c. 152, § 34 total incapacity benefits at a rate of $70 per week for this period. (Dec. 3, 4.) After nine months of therapy, the employee returned to light duty full-time work starting July 10, 1972 until he was laid off on April 1973. (Dec. 3; Tr. 4.) He was not gainfully employed between 1973 and 1978. (Dec. 3) In February 1978 the employee found work part time, two days a week. (Dec. 3.) He has not worked since November 1978. (Dec. 3.)
In October 1991 the employee filed a claim for further workers’ compensation benefits based on claimed residuals of the October 12, 1971 injury. (Dec. 4.) A conference was held on the employee’s claim, which was denied by an order dated August 26, 1992. The employee appealed to a hearing de novo. In addition to disputing that the employee was incapacitated, the insurer raised as issues “prejudice and late claim,” (Tr. 10), which the decision listed as issues of late notice and late claim. (Dec. 1.) The parties stipulated that the insurer had accepted liability and paid a closed period of compensation for the claimed date of injury. (Dec. 2.)
After considering the evidence, the judge filed a decision in which he found that the employee had delayed in reporting the injury and had given late notice of injury to the insurer. (Dec. 5, 6.) Relying on Lenz v. AT T Technologies,
6 Mass. Workers’ Comp. Rep. 81, 83 (1992) (judgement aff’d March 31, 1994, Mass. App. Ct.) and Stover v. Chamberlain Mfg. Corp.,
1 Mass. Workers’ Comp. Rep. 371, 375 (1988), for the proposition that “. . . the employee has the burden to show that the insurer was not prejudiced by his delay in reporting the injury,” the judge found that the employee had failed to meet that burden. (Dec. 5, 6.) He then found that the late notice deprived the insurer of the opportunity “to procure evidence” and “examine or treat the employee during the period of his claimed disability.” (Dec. 5.) Accordingly, he denied and dismissed the employee’s claim for further compensation based on late notice of injury. (Dec. 5, 6.)
On appeal, the employee contends the judge dismissed his claim based on erroneous conclusions of law. We agree. The two cases cited by the judge, Lenz v. AT T Technologies, supra, andStover v. Chamberlain Mfg. Corp., supra, both involve instances where the insurer never received notice of injury and claimed prejudice as a result. The insurer here had notice of injury and made payment of compensation benefits in 1971. That notice does not expire.
Section 41 establishes two distinct statutory requirements of notice and claim. G.L.c. 152, § 41.[1] Generally, notices must be in writing, stating the time, place, and cause of injury. See G.L.c. 152, § 42. Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice. G.L.c. 152, § 44.[2] In the instant case, the insurer had knowledge of the 1971 injury, having accepted liability and paid compensation benefits for nine months, as stipulated. (Dec. 2, 3, 4.) Where there is such knowledge of injury, the requirement of notice is satisfied. The employee then has no obligation to establish the alternative condition of the statute, i.e., lack of prejudice. See § 44. The denial of the employee’s claim for alleged late notice is thus error as a matter of law.
We address the issue of whether the employee is barred from pursuing further incapacity compensation by reason of any “late claim”. (Dec. 1) The insurer argues that the employee failed to file his claim within the statutory limit pursuant to G.L.c. 152, § 41, and was therefore required to show reasonable cause or mistake for such delay or lack of prejudice to the insurer under G.L.c. 152, § 49.[3] (Insurer’s Brief, 2-3.) This argument ignores the plain language of the last sentence of § 49 which provides in addition: “In no case shall failure to make a claim bar proceedings if the insurer has executed an agreement inregard to compensation with the employee or made any payment ofcompensation under this chapter. G.L.c. 152, § 49 (emphasis added).[4] Because the insurer here paid compensation to the employee back in 1971 for the same injury for which the employee now seeks further compensation, the insurer’s defense of late claim fails, and the employee may, pursuant to the provisions of § 49, bring the instant claim for further compensation. Where liability has been accepted, issues of prejudice or mistake do not arise. We reverse the decision denying compensation.
The case is therefore remanded for findings on the employee’s claim for further compensation based on the accepted industrial injury. So ordered.
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Sara H. Wilson Administrative Law Judge
Filed: August 22, 1996
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. . . .
Section 41 was rewritten by St. 1985, c. 50, by § 68 made effective January 1, 1986, and by St. 1985, c. 572, deemed to be substantive in character. The current version of § 41 provides:
No proceedings for compensation payable under this chapter 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 any claim for compensation due with respect to such injury is filed within four years of the date the employee first became aware of the causal relationship between his disability and his employment. In the event of death, no claim shall be made later than four years after the death. Where an action against a third person, as provided by section fifteen, is discontinued, no claim for compensation shall be made later than sixty days after such discontinuance.
The payment of compensation for any injury pursuant to this chapter or the filing of a claim for compensation as provided in this chapter shall toll the statutes of limitations for any benefits due pursuant to this chapter for such injury.
Such notice shall not be held invalid or insufficient by reason of any inaccuracy in stating the time, place or cause of the injury unless it is shown that it was the intention to mislead and that the insurer was in fact misled thereby. Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice.
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 is 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 the chapter.