Em Enid D’Sylvia Employee
Alisande Cunningham Sweeney d/b/a Juniper Hill Farm Employer
Workers Compensation Trust Fund Insurer
No. 005334-13
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
May 29, 2019
The
case was heard by Administrative Judge Poulter.
Daniel
E. Blakesley, Esq., for the employee
Janice
M. Toole, Esq., for the DIA Trust Fund
Michael J. Chernick, Esq., for the employer at hearing
Steven
Louis Baumohl, Esq., for the employer on appeal
Harpin, Fabricant, Long Judges.
REVIEWING BOARD DECISION
HARPIN, J.
The
uninsured employer appeals from a decision finding the
employee sustained a work-related injury on January 29,
2013.
[1] We affirm the decision.
The
employee originally filed a claim against the Workers’
Compensation Trust Fund (WCTF), as the employer was uninsured
on the date of injury. At the conference held on July 15,
2015, the WCTF moved to join the employer as a party, which
the judge allowed. (Dec. 3; Tr. I, 4.) Following the
conference, on July 17, 2015, the judge ordered the WCTF to
pay the employee § 35 benefits, which the WCTF and the
employee appealed. (Dec. 3.) The employer did not file an
appeal at that time. Id. The case proceeded to a
hearing, with testimony taken on November 14, 2014, and
December 19, 2014. By the next day set for hearing, July 24,
2015, the WCTF and the employee informed the judge they had
reached a settlement agreement, and they each were prepared
to withdraw their appeals of the conference order.
Id. (Tr. III, 3.) The judge noted, with the
employer’s attorney present, that with such
withdrawals, “The case then shuts down. The litigation
is then over.” (Tr. III, 8.) The employer objected,
after noting that the failure to file an appeal originally
had been an oversight, and asked for time to petition the
Director of the DIA to file a late appeal, even though under
G. L. c. 152, § 10A(3), such petition had to be filed
within one year from the date of the July 17, 2015,
conference order. (Tr. III, 9-12.) The judge allowed the
employer time to file such a petition, which she did on July
29, 2015. (Petition to Chief Judge or Commissioner. See
Rizzo v. MBTA, 16 Mass. Workers’ Comp. Rep.
160, 161 n.3 (2002)(permissible to take judicial notice of
Board file.) In the meantime, the judge held a lump sum
conference on July 31, 2015, with the WCTF, the employee, and
her attorney present. The employer’s attorney later
alleged he did not receive notice of the conference, and thus
did not attend. (Employer’s br. 4.) After the lump sum
presentation the judge held the settlement in abeyance,
pending the outcome of the employer’s petition to the
Director. (Tr. IV, 12.) The Director responded in August,
2015, that she did not have authority to allow a late appeal
at that time, but requested that the hearing judge and
parties resolve the matter.
[2] (Dec. 3.) After considering the
employer’s request, the judge did not allow the late
appeal, id, likely because she lacked any authority
to do so, that authority lying with the Director alone.
Consequently, this should have been the end of the matter, as
the employee and the WCTF had agreed to settle the underlying
claim. However, on September 17, 2015, the next scheduled day
of the hearing, the judge noted, without objection from any
of the parties, that:
the parties are in agreement with regard to all of the issues
[except] the employee/employer relationship at the time of
the accident. And so the only issue in dispute at this
juncture is the employee/employer relationship at the time of
the accident and all the parties are in agreement with regard
to that and the decision coming from the Court will mark the
other issues as being resolved.”
(Tr. V. 3-4; Dec. 3.)
Nothing
was said on the record by either the judge or the parties why
the testimony continued, in the face of the agreed
settlement, and the statement by the judge that she was
holding the settlement in abeyance only until the Director
made her decision on the employer’s petition.
[3] Testimony
was taken on that day and on October 30, 2015. The decision
was filed on January 7, 2016. (Dec. 9.) A lump sum agreement
was then approved by the judge between the employee and the
WCTF on January 13, 2016. (Approved Lump Sum Agreement, dated
January 13, 2016. Rizzo, supra.)
Ordinarily,
the settlement between the employee and the WCTF would have
closed out the case. Teehan’s Case, 7
Mass.App.Ct. 846 (1979)(a settlement reached while a case is
on appeal renders moot the issues raised for judicial
review.) However, the parties proceeded to complete the
hearing process, through a decision, after the settlement was
agreed on, in effect trying the case to conclusion by
consent. See Martinez v. Georges Renovations, LLC,
33 Mass. Workers’ Comp. Rep. ___ Note 5 (April 19,
2019)(failure to appeal a conference order ordinarily
prevents party from raising any issues at hearing, but if the
hearing is held on those issues by consent and without
objection by the other parties, a valid decision results). In
the unique circumstances of this case, and only in this case,
we think it fundamentally unfair to the employer, after being
allowed to put her case into the record and receive a
decision, to be precluded from advancing her appeal because
of the settlement to which she properly was not a part. We
will therefore proceed to consider her issues on appeal.
The
employee was 56 years old at the time of the hearing. Of the
five witnesses who testified at the hearing, the judge found
only her testimony credible. The employee had worked as a
Licensed Practical Nurse (LPN) in California, from 2008 to
November, 2012, and held LPN licenses in both California and
Massachusetts. (Dec. 5.) The employee relocated to...
