No. 04773595 (1999). EMPLOYEE: Joseph A. Garbarino.
Case Date | May 25, 1999 |
Court | Massachusetts |
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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