William Burrell, Employee
All Pro Piano Movers/Omar Soffan Worker’s Compensation Trust Fund Employer Insurer
Mayakaya Corp./d/b/a Royal Academy of Performing Art1 Republic-Franklin (Utica) Insurance Co. Employer Insurer
Nos. 037380-16, 026693-16
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
April 3, 2020
This
case was heard by Administrative Judge Maher.
Robert
A. Reardon, Jr., Esq., for the employee
Janice
M. Toole, Esq., for the Workers’ Compensation Trust
Fund
Thomas
A. Richard, Esq., for Utica at hearing and on brief
Vincent M. Tentindo, Esq., for Utica
2
Jacob
Morris, Esq., for the employer
Calliotte, Fabricant and Koziol, Judges
REVIEWING
BOARD DECISION
CALLIOTTE, J.
Republic-Franklin
Insurance Company (Utica) appeals from a decision ordering it
to pay the employee a closed period of § 34 temporary
total incapacity benefits, and §§ 13 and 30 medical
benefits for the same period. Utica makes a number of
arguments, centering around its contention that the policy of
insurance it issued to Mayakaya Corporation d/b/a Royal
Academy for Performing Art did not cover the employee or All
Pro Piano Movers, the entity for which he allegedly worked.
We affirm the decision.
The
employee, thirty-three years old at the time of hearing,
worked as a piano mover. (Dec. 7.) He understood his employer
was All Pro Piano Movers, owned by Omar Soffan. (Tr. 53.) On
August 8, 2016, the employee injured his back moving a piano.
(Dec. 8.) He had two back surgeries, the first on August 18,
2016. The employee filed a claim against Utica, to which were
joined claims against the Workers’ Compensation Trust
Fund (Trust Fund), and the employer. Rizzo v.
M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160,
161 n.3 (2002)(reviewing board may take judicial notice of
documents in board file). Following a conference, the judge
ordered Utica to pay the employee § 34 temporary total
incapacity benefits based on an average weekly wage of
$251.29 from February 24, 2017, to date and continuing, but
denied the claim for medical benefits under §§ 13
and 30. (Dec. 4.) The employee, Utica and the Trust Fund all
appealed to hearing. Id.
At
hearing, Utica denied coverage for Mayakaya Corporation d/b/a
All Pro Piano Movers, and sought recoupment of payments made
pursuant to G. L. c. 152, § 11D. The Trust Fund asserted
that Utica was responsible for any benefits due. Both Utica
and the Trust Fund raised a number of other
issues,
3 which we need not address, since the only
issue on appeal involves insurance coverage.
The
judge heard testimony from several witnesses addressing the
nature of Mayakaya Corporation’s business, the extent
to which it involved moving pianos, and the extent to which
such information was provided to the employer’s
insurance agent.
4 In addition, he admitted as exhibits
voluminous documents, including Utica’s workers’
compensation policy issued to Mayakaya Corporation d/b/a
Royal Academy of Performing Art for the relevant time period.
(Ex. 12, Utica Policy for Mayakaya 7/24/16-7/24/17.) The
articles of organization, which were also admitted, indicate
that Mr. Soffan’s company was incorporated simply as
Mayakaya Corporation. (Ex. 23.) (See Dec. 2-3.)
In his
decision, the judge found, “Omar Soffan is the owner of
Mayakaya Corporation d/b/a All Pro Piano
Moving.”
5 (Dec. 7.) Apparently referencing the music
school Mr. Soffan operated under the name “Mayakaya
Corporation d/b/a Royal Academy for Performing
Art,”
6 the judge found, “the school had
events and recitals where instruments were moved from the
school to the site on the day of the event or recital.”
(Dec. 7.) With respect to insurance coverage for piano
movers, he continued as follows:
Mr. Soffan credibly testified that he provided information to
Nicholas Manero of Manero Insurance Agency regarding his
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