Adilson DaSilva Employee
Associated Employers Insurance Company Insurer
XD Home Improvement, Inc. Employer
AmGuard Insurance Co. Insurer
Nos. 006217-16, 038415-16
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
December 27, 2019
This
case was heard by Administrative Judge Bean.
Seth
J. Elin, Esq., for the employee.
Edwin
W. Barrett, III, Esq., for Associated Employers Insurance Co.
Steven
J. Bolognese, Esq., for AmGuard Insurance Co., at hearing.
John
J. Canniff, Esq., for AmGuard Insurance Co., on appeal.
Calliotte, Fabricant and Long, Judges.
REVIEWING
BOARD DECISION
CALLIOTTE, J.
The
claimant, a corporate officer who chose to be exempt from
coverage under his corporation’s policy of
workers’ compensation insurance, appeals from a
decision denying and dismissing his claims against the
insurer of his corporation and the insurer of the general
contractor. The claimant makes four arguments, none of which
we find meritorious. Therefore, we affirm the decision.
Adilson
DaSilva emigrated to the United States from Brazil in 2005 at
the age of twenty-one. His native language is Portuguese.
Although he speaks some English, he cannot read or write in
English. On March 11, 2016, while dismantling an antenna in
preparation for starting a roofing job, the claimant fell
approximately forty feet, sustaining numerous injuries. He
was in the hospital for eight days with orthopedic injuries
and a collapsed lung, and then spent eighteen more days in a
rehabilitation facility. He claims he has been unable to work
since the accident. (Dec. 447- 448.) At the time of the
injury, the claimant was the sole owner of the corporation
which had been hired to do the roofing job, XD Home
Improvement, Inc. The general contractor on the job was Andre
Ebersole. (Dec. 448.) Both companies carried workers’
compensation insurance. Pursuant to G. L. c. 152, § 18,
the claimant filed a claim against Associated Employers
Insurance Company, (Associated Employers), the insurer for
the general contractor. Following a § 10A conference in
which the judge denied the claim against Associated
Employers, that insurer succeeded in having the judge join
AmGuard, the insurer of the claimant’s corporation, XD
Home Improvement. The case proceeded to hearing with both
insurers. (Dec. 447.)
The
threshold issue was whether the claimant was covered under
the policies of either insurer. The basic facts were
undisputed. Effective October 6, 2015, the claimant purchased
a policy of workers’ compensation insurance for
employees of his company, through his agent, B&S Gillis
Insurance. However, he excluded himself from coverage under
the policy by signing a “Form 153,” pursuant to
G. L. c. 152, § 1(4),1 and 452 Code Mass. Regs.
8.06.2 (Dec. 448.) On February 19, 2016, he
signed and filed with the Department, through his agent, a
second Form 153, seeking to rescind his exemption from
coverage. On February 26, 2016, the Department approved that
Form 153 affidavit, and returned the notice of approval to
the employee at his business address, with instructions that
it was his “obligation to submit an approved affidavit
to your insurance carrier in order to complete this
process.” (Ex. 7, Notice of Decision Regarding
Affidavit of Exemption for Certain Corporate Officers or
Directors.) However, the employee did not send written
notification of his desire to be covered under his
company’s workers’ compensation policy to his
insurance carrier, as required by 452 Code Mass. Regs. §
8.06(5),3 prior to his industrial accident on March
11, 2016. (Dec. 449.)
At
hearing, there was conflicting testimony from the claimant
and from representatives of B&S Gillis Insurance, his
insurance agency, as to the claimant’s understanding of
his coverage status, and what his insurance agents had
communicated to him. The claimant testified that he was
unaware he was not covered by workers’ compensation
insurance when he initially purchased it in October 2015.
After speaking to a friend who was denied workers’
compensation benefits after signing a Form 153, the claimant
consulted with his insurance agent, found out he was not
covered, and attempted to rescind his original Form 153. His
agent sent a new Form 153, which the claimant had signed, to
the Department, indicating the claimant no longer wished to
be exempt from coverage. After the Department approved the
form on February 26, 2016, the claimant admitted he did not
follow the requirement in § 8.06(5) that he notify the
insurer of his desire to rescind his exempt status. He
claimed he did not know about that requirement. (Dec. 449.)
Two
representatives of B&S Gillis also testified. Sabrina
Gillis testified that “she explained everything about
the workers’ compensation policy to the [claimant] in
Portuguese.” (Dec. 449.) Despite her recommendation in
the fall of 2015 that the claimant include himself in his
company’s policy, he declined to do so because it was
too expensive. Therefore, she helped him fill out the first
Form 153 exempting him from coverage. She denied that he
asked her if he was covered when he came to her office in
February 2016, seeking to revoke his exemption. At that time,
another employee of B&S Gillis, Raquel Matos, helped him
complete a new...
