No. 970140BCommonwealth of Massachusetts Superior Court WORCESTER, SS
October 3, 1997
MEMORANDUM DATED OCTOBER 3, 1997
TRAVERS, J.
The Defendant, John M. Whittemore (Whittemore) filed this motion to dismiss on April 16, 1997. Whittemore is seeking to dismiss the Plaintiff, W.E. Aubuchon Co., Inc.’s (Aubuchon) Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Mass.R.Civ.P. 12 (b)(6). For the following reasons, Whittemore’s Motion to Dismiss is hereby ALLOWED.[1]
BACKGROUND
The following facts are taken from Aubuchon’s Amended Complaint. Whittemore was a long-term employee with Aubuchon, as a truck driver. In late March 1996, Whittemore was suspended[2]
for three days for refusing to work on three separate occasions due to claims of injury, and his failure to substantiate these claims with medical records. After a hearing, the suspension was approved by the Massachusetts Board of Conciliation and Arbitration.
On March 29, 1996, while working for Aubuchon, Whittemore was allegedly injured while making a delivery to Rutland, Vermont. As a result of the alleged injury, Whittemore was out from work beginning on or about March 29, 1996,[3] after reporting his injury to Aubuchon. As a result of the alleged injury, Whittemore filed a workers’ compensation claim for benefits.[4]
Suspecting that Whittemore was misrepresenting the extent of his claimed injuries, Aubuchon obtained covert surveillance of Whittemore allegedly conducting activities between April 3 and April 13, 1996, which indicate that Whittemore misrepresented his injuries to his own doctor. These alleged activities include walking; standing; bending; exerting pressure by lifting and carrying items; using a sledge hammer; driving; and doing “all or most of the things required of your job.” Additional surveillance conducted on October 22, November 5 and November 6, 1996 reveal Whittemore allegedly conducting activities such as lifting a sewer cover and septic hose; bending; retrieving tools; bending to retrieve election signs; using a sledge hammer to make holes for the signs; holding signs; carrying empty cases of cans at a recycling center; throwing and kicking trash out of a pickup truck; pushing a reclining chair out of the truck; and jumping out of the truck. Aubuchon states that Whittemore appeared “to be in no pain while performing these duties.”
Aubuchon terminated Whittemore’s employment on December 13, 1996.[5] On January 16, 1997, Aubuchon filed this cause of action against Whittemore, alleging that Whittemore committed fraud in a workers’ compensation proceeding.[6]
Whittemore’s Answer, filed on February 10, 1997, raised numerous affirmative defenses, including Aubuchon’s failure to state a claim under which relief could be granted. Whittemore also set forth a counterclaim.[7] Whittemore filed this motion to dismiss on April 16, 1997, and a hearing was held on September 12, 1997.[8]
Aubuchon’s Amended Complaint alleges that Whittemore’s claim for benefits is “fraudulent and . . . brought and prosecuted . . . with an intent to defraud . . .” Aubuchon alleges that Whittemore failed to respond to correspondence seeking medical records or provide requested medical documentation, and gave conflicting explanations as to how the Rutland, Vermont injury occurred.
Aubuchon alleges that the surveillance conducted during 1996 reveals that Whittemore’s claim is fraudulent. For damages, Aubuchon claims that it has suffered injury as a result of Whittemore’s fraudulent claim for benefits because its worker compensation insurance policy is a “loss sensitive insurance program.” This program requires Aubuchon to reimburse payments of claims and administrative expenses “at a rate of 136% of the actual payments and costs incurred.”[9]
DISCUSSION A. Standard
When evaluating the sufficiency of a complaint pursuant to Mass.R.Civ.P. 12 (b)(6), the Court must accept as true the allegations of the complaint, as well as any reasonable inferences to be drawn from them in the plaintiff’s favor. See, Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). “The plaintiff need only surmount a minimal hurdle to survive a motion to dismiss for failure to state a claim.” Bell v. Mazza, 394 Mass. 176, 184 (1985). The complaint is accorded a “generous reading.” New England Insulation Co. v. General Dynamics Corp., 26 Mass. App. Ct. 28, 29 (1988). Any materials outside the four corners of the complaint are excluded when deciding a motion to dismiss; only the facts set forth in the complaint are considered. See, General Motors Acceptance Corp. v. Abington Casualty Ins. Co., 413 Mass. 583, 584 (1992). As stated in footnote 5, supra, this Court will consider the Termination Letter as it was properly incorporated into the Amended Complaint.
B. Aubuchon’s Claim For Relief
Aubuchon sets forth in its Amended Complaint the relevant provision of G.L.c. 152, § 14(2) upon which it seeks relief. The relevant portion of that statute reads as follows:
If it is determined that in any proceeding within the division of dispute resolution, [a party, including attorneys and medical witnesses, acting for the employee or insurance company] 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, the party’s conduct shall be reported to the general counsel of the insurance fraud bureau.
G.L.c. 152, § 14(2) (West 1997 Supp.) (emphasis added). Despite the insurance fraud bureau’s response to such a claim, the offending party can be fined. Id. The statute also permits the employer, employee or insurance company to file an action under this statute in the Superior Court, as Aubuchon has done in the present case. Id.
Based upon the facts set forth above, Aubuchon alleges that Whittemore violated the provisions of this statute. Reading the Amended Complaint generously, Aubuchon alleges that because Whittemore failed to cooperate with his employer, and more importantly, was observed through surveillance performing actions which call his alleged injuries into question. Whittemore’s claim for worker compensation benefits is fraudulent under G.L.c. 152, § 14(2). This reading of the Amended Complaint leads to the conclusion that Aubuchon interprets the provision “any proceeding within the division of dispute resolution” to not be a fixed point in time where evidence is presented to a tribunal or a hearing is held, but rather a continuum extending from the time the claim for benefits is filed up and through the award or denial of benefits.[10]
Whittemore defines “any proceeding” differently than Aubuchon, setting forth a definition supporting his contention that Aubuchon’s Amended Complaint does not set forth a claim for relief. Whittemore maintains that, absent an allegation that any wrongful actions occurred during “any proceeding within the division of dispute resolution,” Aubuchon’s Amended Complaint cannot survive a motion to dismiss.
The applicable statute does not define what constitutes a “proceeding” and this Court has found only one opinion which addresses the issue. See, Matter of Charles Murphy, Department of Industrial Accidents Docket No. 5304490 (Reviewing Board Decision, January 31, 1997) (Fischer, A.L.J.; Kirby, A.L.J.; Wilson, A.L.J.),;[11] (“Matter of Murphy”). In Matter of Murphy, the Reviewing Board interpreted the term “proceeding” in light of the prior and revised versions of the statute. Id. at 6. Following the standard for statutory interpretation set forth in Industrial Fin. Corp. v. State Tax Comm’n, 367 Mass. 360, 364
(1975) (“statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language”), the Board found that in the revised version of the statute, “proceeding” follows the definition set forth in Blacks Law Dictionary, namely “the form and manner of conducting judicial business before a court or judicial officer.” Matter of Murphy, at 8. Based on this common usage, the Board found that
[t]here are four stages of proceedings at the Department: conciliations, conferences, hearings, and appeals at the reviewing board. The fraud under § 14(2) must occur at one of these events. A party alleging fraud at a prehearing proceeding must place the evidence of the alleged activity on the record at hearing. A developed record at hearing, of the prehearing proceeding actionable activities is thus necessary to support a finding that § 14(2) violations took place in any such prior proceeding.
Based upon the interpretation set forth by the Department of Industrial Accidents Review Board, it cannot be said that general misrepresentations alone, unconnected to a “proceeding,” constitute a violation of § 14(2). To be successful in its cause of action, Aubuchon must allege that Whittemore committed a prohibited act, during one of the four proceedings identified in the Board’s opinion in Matter of Murphy.
Even assuming all allegations within the Amended Complaint to be true, the Amended Complaint fails to allege that any prohibited conduct occurred during a proceeding. In effect, the Amended Complaint sets forth instances of possible misconduct by Whittemore, but fails to state a claim pursuant to G.L.c. 152, § 14(2) upon which this Court may grant Aubuchon relief for such misconduct.[12] However, should there be instances of misrepresentation or fraud in a future proceeding, Aubuchon may have a viable cause of action and may file a new complaint against Whittemore at that time.
ORDER
For the foregoing reasons, it is hereby ORDERED that the Defendant, John M. Whittemore’s Motion to Dismiss is ALLOWED.
TRAVERS, J.