Miguel Espinal Employee
Cruz Abatement & Contracting Services, LLC Employer
ACE American Insurance Company Insurer
No. 027531-16
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
October 1, 2020
Alfred
E. Pearson, Esq., for the employee.
Garrett Harris, Esq., for ACE American Insurance.
Robert
S. Martin, Esq., for Great Divide Insurance Company.
Long,
Koziol and Calliotte, Judges.
REVIEWING
BOARD DECISION
This
case returns to the reviewing board on remand from the
Appeals Court, Espinal’s Case, 98 Mass.App.Ct.
152 (2020), which decision vacated the reviewing
board’s summary affirmation of the administrative
judge’s hearing decision that found Ace American
Insurance had failed to properly cancel its workers’
compensation policy with the employer.
In
vacating our summary affirmation, the court found
“[t]he ‘mailbox rule’ was well established
at the time § 65B was enacted in 1991 … [and] we
presume the Legislature intended the mailbox rule to guide
the question of ‘receipt’ of notice when it
incorporated that term into § 65B.” Id.
at 156-157. Accordingly, the court directs us to remand this
matter to the administrative judge to consider and reach
“the question whether Ace’s prima facie evidence
of delivery might be rebutted ….” Id.
at 157. We do so. As directed by the Appeals Court, the
administrative judge is to determine the effect of the
mailbox rule on the issue of whether Ace timely canceled the
employer’s Massachusetts workers’ compensation
policy.
We
hereby refer the case to the senior judge for recommittal to
the administrative judge, who shall make further findings in
accordance with the Appeals Court decision attached hereto.
So
ordered.
NOTICE:
All slip opinions and orders are subject to formal revision
and are superseded by the advance sheets and bound volumes of
the Official Reports. If you find a typographical error or
other formal error, please notify the Reporter of Decisions,
Supreme Judicial Court, John Adams Courthouse, 1 Pemberton
Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030;
SJCReporter@sjc.state.ma.us
Appeals
Court
MIGUEL
ESPINAL'S CASE (and a companion case[1]).
Nos.
19-P-1483, 19-P-1484.
Suffolk.
May 20, 2020. - July 29, 2020.
Workers'
Compensation Act, Insurer, Cancellation of insurance, Notice,
Findings by administrative judge, Decision of Industrial
Accident Reviewing Board. Insurance, Workers'
compensation insurance, Assigned risk, Cancellation, Notice.
Notice, Cancellation of insurance. Administrative Law,
Agency's interpretation of statute. Mail.
Appeal
from decisions of the Industrial Accident Reviewing Board.
Garrett
Harris for ACE American Insurance Company. Robert S. Martin
for Great Divide Insurance Company. Angel C. Melendez, for
Miguel Espinal & another, was present but did not argue.
Present:
Green, C.J., Wolohojian, & Blake, JJ.
GREEN,
C.J.
Under
G. L. c. 152, § 65B, an insurer that wishes to cancel an
assigned risk workers' compensation insurance policy is
required to give notice to the rating organization and the
insured employer, and no such notice of cancellation shall
become effective until after the employer is given the
opportunity to file objections with the Department of
Industrial Accidents (department), within ten days after
receipt of notice of cancellation. These two appeals present
the question whether an insurer is obliged to prove receipt
of such notice, or whether the insurer may instead give
notice to the insured by first class mail (as prescribed by
G. L. c. 175, § 187C), and rely on the rebuttable
presumption of receipt furnished by the so-called
"mailbox rule." See, e.g., Eveland v.
Lawson, 240 Mass. 99, 103 (1921); Mass. R. A. P. 14 (c),
365 Mass. 859 (1974).2 An administrative judge...
