No. 04840093 (1999). EMPLOYEE: Steven Carucci.

• Case Date: December 13, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 04840093 (1999). EMPLOYEE: Steven Carucci COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Steven Carucci EMPLOYER: S and F Concrete INSURER: U.S.F.and G. InsuranceBOARD NO. 04840093REVIEWING BOARD DECISION (Judges Carroll, Levine and Maze-Rothstein)APPEARANCES William T. Salisbury, Esq., for the employee David W. Perry, Esq., for the insurer at hearing Donald E. Hamill, Jr., Esq., for the insurer on appeal CARROLL, J. The employee and insurer appeal from a decision in which an administrative judge awarded the employee benefits on his original liability claim, while at the same time finding that the employee had engaged in fraudulent conduct proscribed by § 14. The employee challenges, among other things, the judge's finding of fraud. The insurer contends, among other things, that the judge's finding of fraud required him, in turn, to deny and dismiss the employee's claim for benefits in its entirety. As to these two predominant issues on appeal, we affirm the decision. However, we reverse the decision in part, and recommit the case for the judge to assess the penalty under § 14(2). In the autumn of 1993, Steven Carucci worked as a laborer for the employer, doing construction work at a project at Deer Island. On November 18, 1993, the employee twisted his back while he was hauling lumber up a flight of stairs. He felt immediate pain, but worked for another hour with pain in his lower back, which radiated into his buttocks and leg. He reported the incident and injury and, although told to take it easy, remained on the job for the rest of the day. His pain worsened that night, and he did not return to work as a laborer, but consulted a doctor. (Dec. 180-181.) Although he did not return to work the next day, Carucci drove to the Massachusetts Highway Department and signed a contract to plow snow for the Commonwealth during the coming winter. The employee, who owned his own truck and plow, had performed plowing services for the previous few winters. The Commonwealth paid $55 per hour for plowing, with the employee responsible for his own expenses. (Dec. 181.) Commencing on December 11, 1993 and continuing until March 26, 1994, the employee grossed $10,202.50 plowing for the Commonwealth. (Dec. 181, 183.) The insurer commenced § 34 weekly temporary total incapacity payments, without prejudice, on December 15, 1993, which payment was retroactive to November 19, 1993. (Dec. 173, 178, 183.) The insurer started investigating the employee's activities in mid-January 1994. (Dec. 184.) The investigator witnessed the employee plowing. However, the investigation did not uncover that the employee's work was for the Commonwealth. (Dec. 185.) On February 23, 1994, the insurer terminated the employee's with-out-prejudice payments pursuant to § 8(1), effective as of March 2, 1994. (Dec. 186.) The insurer sent a request for an earnings report to the employee on February 28, 1994. Id. The employee returned it on March 29, 1994. The employee reported no gross earnings at any time from the date of his work injury, November 18, 1993. (Dec. 186; Insurer's Ex. 21.) The employee had received paychecks from the Commonwealth in the amounts of $550.00, dated February 25, 1994, and $302.50, dated March 18, 1994, for his plowing work. In May 1994, the employee received the remainder of the $10,202.50 that he earned from the Commonwealth for his winter 1993-1994 plowing. (Dec. 186.) By May 1994, the employee began working for his own company, Picket Fences. On May 3, 1994, the employee reported to the insurer, through his attorney, that he was only performing supervisory work and no physical labor. On May 4, 1994, the insurer's investigators videotaped the employee performing physical labor in dismantling a fence and installing a new fence. In his report of the employee's fencing activities, the employee's attorney made no mention to the insurer of the employee's plowing during the preceding winter. (Dec 187.) The employee's medical treatment started on November 30, 1993, when he was seen by Dr. Donald R. Pettit, who treated the employee conservatively. (Dec. 182.) Dr. Pettit's report of December 28, 1993 stated that the employee "has been out of work since that time[,]" namely, the November 18, 1993 work injury. The doctor causally related the employee's disability to that event. (Dec. 193; Employee's Ex. 21.) The doctor ordered an MRI, which was performed on December 30, 1993. The MRI showed a disc herniation at L5-S1. Dr. Pettit stated in his report of January 17, 1994, that the employee "remains totally disabled for work as has been the case since the date of his injury." The doctor further stated that the employee could not even return to modified light duty work. (Dec. 193; Insurer's Ex. 36.) In his July 12, 1994 report, Dr. Pettit stated that the employee "began to work managing his own fencing company. He claims that he was only doing paperwork and sales and did none of the actual construction." (Employee's Ex. 21; Dec. 193-194.) The employee was examined several times by Dr. John L. Doherty. In one of his four reports, prepared for the employee, the doctor stated on June 24, 1994 that the employee "has started his own fencing business. He sells fences but does not install them." (Dec. 195; Employee's Ex. 23.) The employee underwent surgery on December 13, 1994. The physician who performed the surgery, Dr. William P. McCann, stated in his October 24, 1994 report that the employee did not perform physical work in his fencing company. (Dec. 196-197; Employee's Ex. 24.) In a report prepared for the insurer, Dr. John F. Coldewey stated that the employee "remained out of work [after his work injury] until...