No. 03844293 (1999). EMPLOYEE: Cheryl Billert.

• Case Date: November 03, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 03844293 (1999). EMPLOYEE: Cheryl Billert COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Cheryl Billert EMPLOYER: Rainbow Nursing Home INSURER: Liberty Mutual Insurance CompanyBOARD NO. 03844293REVIEWING BOARD DECISION (Judges Levine, Maze-Rothstein and Carroll)APPEARANCES Joseph S. Provanzano, Esq., for the employee, Dr. Galena and pro se Joseph J. Durant, Esq., for the insurer LEVINE, J. The employee, her chiropractor and her attorney at hearing appeal from a decision in which an administrative judge concluded that all three were jointly and severally liable for violation of § 14(2)'s prohibition against fraudulent claims for compensation benefits. We affirm the decision as to the employee. We reverse the decision as to the employee's attorney and chiropractor. We reserve the right of the insurer to bring a proper § 14(2) claim against the chiropractor, consistent with this opinion. At hearing the insurer accepted that the employee injured her back at work on October 15, 1993. (Insurer Ex. 1; September 24, 1996 Tr. 4-5 1; Dec. 2.) The insurer paid weekly benefits without prejudice for a period of time after the industrial injury. (Dec. 2.) The employee brought a claim for workers' compensation benefits, which the insurer opposed. The insurer also responded by bringing a claim for § 14(2) fraud. 2 The conference took place on June 7, 1994. The employee and insurer cross-appealed the judge's June 20, 1994 conference order, which denied the employee's claim for compensation, but was silent as to the claim for fraud. Id. The employee started chiropractic treatments with Dr. Steven Galena on December 22, 1993. Dr. Galena treated the employee for her work-related injury until January 21, 1994, when Dr. Galena released the employee from treatment. (Dec. 3.) Later that same day, after she was released by Dr. Galena, the employee was in a motor vehicle accident, in which she was struck from behind, resulting in further injury to her back. Id. Dr. Galena continued to treat the employee, but he attributed the treatment during the next two months to injuries stemming from the motor vehicle accident. Dr. Galena sent the bills for those treatments to Commerce Insurance Company, the insurer for the motor vehicle accident. (Dec. 4; Tr. III, 12.) While Dr. Galena disclosed the workers' compensation injury to Commerce, he did not disclose the motor vehicle accident to the workers' compensation insurer. In a report relating to the employee's workers' compensation claim, written one month after the motor vehicle accident, Dr. Galena opined that the employee "remains totally disabled as of the last visit I had with her pertaining to this industrial accident." (Dec. 4; Feb. 22, 1994 letter, Insurer's Ex. 4.) This letter was submitted at the June 7, 1994 conference proceeding, where the claim on behalf of the employee was for temporary total incapacity benefits from the date of injury to date and continuing. (Dec. 3-4.) Dr. Galena resumed submitting bills for treatment to the workers' compensation insurer as of March 16, 1994. (Tr. II, 12; Tr. III, 14.) Later, Dr. Galena wrote in a September 23, 1994 letter that he attributed the employee's back condition directly to her work injury of October 15, 1993, and stated that questioning of the employee "did not reveal any new causation from either injury, disease, or accident relative to her work or home activities." (Employee Ex. 3.) Dr. Galena maintained two separate sets of medical records for the employee's treatment, one for the workers' compensation claim and the other for the motor vehicle accident claim. (Dec. 4.) The workers' compensation insurer subpoenaed all Dr. Galena's records of treatments for the employee. (Insurer's Ex. 2.) Dr. Galena only submitted the records which he attributed to the workers' compensation injury, even though he signed a certification that he was providing all the employee's records in his possession. (Dec. 5; Insurer Ex. 4.) These incomplete records were submitted on behalf of the employee at the June 7, 1994 conference proceeding, (Dec. 5), in support of her claim for temporary total incapacity benefits "from 10/15/93 To Present and Continuing." 3 (Conference Memorandum Cover Sheet.) 4 At the full evidentiary hearing, the judge heard testimony from the employee and from Dr. Galena. At hearing, the employee claimed § 34 benefits from the date of injury, October 15, 1993 until January 20, 1994, and § 35 benefits from March 17, 1994 until October 12, 1994. (Employee Ex. 2.) The employee thus no longer sought weekly workers' compensation benefits for the two month period, which Dr. Galena testified was related to the motor vehicle accident. (Tr. II, 12.) The judge did not find Dr. Galena to be a credible witness. The judge found Dr. Galena's reports to be misleading, and inferred that his practice of segregating the treatment records of the two injuries from each other "was done to facilitate concealment of the automobile accident from the insurer." (Dec. 5.) The judge was not persuaded, based on Dr. Galena's medical opinion, that the employee had been incapacitated for the claimed periods. (Dec. 5-6.) Furthermore, the judge stated that "a party submitting a claim for compensation, her attorney and her expert witness are all under a duty to make a full disclosure of any facts that bear on her disability, including a subsequent aggravating injury that occurs before the period for which compensation is claimed ends." (Dec. 7.) "The existence of the automobile accident which Dr. Galena thought aggravated the employee's work related injury is certainly a material fact bearing on the subject of Dr. Galena's testimony and the employee's claim for compensation after January 21, 1994. The failure to disclose that accident in presenting the employee's claim for compensation was fraudulent. Since the employee, her attorney and Dr. Galena were all aware of her automobile accident, I find that the nondisclosure was intentional and was done in the course of the proceedings before me." (Dec. 7-8.) The judge thereupon awarded the insurer a penalty under the provisions of § 14(2) as against the employee, Dr. Galena, and the employee's attorney at hearing. (Dec. 8.) I. Dr. Galena's Appeal We review the appeal of Dr. Galena first. From his sixty page brief, we discuss one issue that merits reversal of the award of § 14(2) penalties against him. Simply stated, the insurer never adequately notified Dr. Galena that it claimed fraud as to him. (Galena Brief, 28, 39-40.) As such, the minimal requirements of due process were not met. The penalty against the chiropractor cannot stand. There are certain pertinent facts as to Galena's participation in this...