No. 04773595 (1999). EMPLOYEE: Joseph A. Garbarino.

Case DateMay 25, 1999
CourtMassachusetts
Massachusetts Workers Compensation 1999. No. 04773595 (1999). EMPLOYEE: Joseph A. Garbarino COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Joseph A. Garbarino EMPLOYER: Vining Disposal, Inc. INSURER: Providence Washington Insurance CompanyBOARD NO. 04773595REVIEWING BOARD DECISION (Judges Levine, Maze-Rothstein, and Carroll)APPEARANCES Jeffrey A. Gorlick, Esq., for the employee Michael A. Fager, Esq., for the insurer LEVINE, J. The employee appeals from an administrative judge's decision denying him workers' compensation benefits pursuant to G. L. c. 152, § 27A. That section provides that if it is found that, at the time of hire, an employee knowingly and willfully made a false representation as to his physical condition which his employer relied upon in hiring him, when the employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring a serious injury, and an injury related to the misrepresented condition occurs, then the employee is not entitled to benefits under c. 152. The employee argues that the insurer has failed to prove the elements of § 27A. We hold that the administrative judge's finding as to the first element of § 27A -- that the employee knowingly and willfully made a false representation as to his physical condition at the time of hire -- is based on an error of law; furthermore, there is need for the judge to revisit the issue of the employer's reliance (the second element). Therefore, we reverse the decision in part and recommit the case for further findings. The employee, who was 42 years old at the time of the hearing, had worked as a laborer or truck-driver/delivery man for most of his life. He dropped out of school after the eighth grade due to reading problems related to dyslexia. On January 9, 1994, the employee was involved in a non-work-related motor vehicle accident. He was treated for a lower back injury. At the time of this accident, the employee was working as a truck driver delivering windows for a company called Lynn Industries. As a result of this injury, the employee could not continue this employment. (Dec. 5-6.) While still treating for this injury, the employee applied for a job with the present employer, Vining Disposal, Inc., as a garbage truck driver and trash collector. He completed an employment application on July 5, 1994, which included a pre-employment physical examination and drug testing. He was hired on July 6, 1994, and began work the next day. On June 24, 1995, approximately one year after he was hired, an MRI examination revealed a disc herniation at the L4-5 level. (Dec. 6.) Several months later, on November 20, 1995, as he lifted a barrel of wet leaves at work, Mr. Garbarino felt a sharp pain in his back which radiated to his legs. He went out of work, and subsequently, on November 4, 1996, underwent back surgery. He had serious complications, and has been unable to work since the date of his industrial injury. (Dec. 6-7.) The insurer paid the employee benefits without prejudice until March 27, 1996; thereafter, the employee filed a claim for ongoing § 34 benefits. Following a § 10A conference, an order issued awarding the requested benefits. The insurer appealed to a hearing de novo, which was held over three days (March 10, 1997, April 2, 1997, and April 14, 1997). 1 At hearing, the insurer raised § 27A as a defense. In addition to the impartial medical examiner's report and deposition testimony, the parties were allowed to submit medical records "to address the issues of Sections 1(7A) and 27A." (Dec. 2.) The judge found that the insurer prevailed in the § 27A affirmative defense, and that the employee was therefore not entitled to benefits. (Dec. 19.) The employee appeals, alleging that the insurer has failed to prove all the elements of § 27A. General Laws c. 152, § 27A (St. 1991, c. 398, § 51A) states, in its entirety: In any claim for compensation where it is found that at the time of hire the employee knowingly and willfully made a false representation as to his physical condition and the employer relied upon the false representation in hiring such employee, when such employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring a serious injury, then the employee shall, if an injury related to the condition misrepresented occurs, not be entitled to benefits under this chapter. Retention of an employee who rectifies any misrepresentation made to his employer regarding his physical condition subsequent to the hire but prior to the injury shall restore any right to compensation under this chapter. We agree that the decision is flawed as to two of the elements of § 27A. The first element of § 27A which the insurer must prove is that, at the time of hire, the employee knowingly and willfully made a false representation as to his physical condition. The judge's findings on this element are...

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