11 Mass. App. Ct. 590 | Mass. App. Ct. | 1981
The insurer appeals from a judgment entered in the Superior Court awarding compensation and costs to the employee under G. L. c. 152, § 14. The judgment affirmed the findings and decision of a reviewing board which had adopted the findings and decision of a single member.
We summarize the facts found by the board. On May 6, 1969, the employee sustained an injury at work which caused him pain in the neck, lower back, and left leg. Compensation was paid on account of the disability resulting from this injury, pursuant to an agreement approved by the board, until January 2, 1970, when the employee returned to work. He worked until April 6, 1970, even though he continued to experience some pain. On April 2, 1970, while at work, the employee “suffered an aggravation of his previous injury.” His pain became more severe after this incident. He informed the insurer of the April 2 incident by letter on April 8, 1970. The employee missed work from April 6 to April 13, 1970, but thereafter worked until April 27, 1970. He has not worked since. He was paid benefits for these absences, at the rate provided in the agreement, until June 28, 1971. In April of 1972 the employee underwent a disc operation which relieved the pain in his neck. He continued to experience pain in his lower back. Arrangements were made in late 1972, by a physician, for surgery on the employee’s lower back. The operation was not performed due to his lack of funds. The board found that he had been totally incapacitated as a result of an injury sustained on April 2, 1970.
On January 29., 1971, the insurer filed an application for discontinuance of compensation payments based on medical reports which indicated that the employee was not incapacitated. In a letter dated June 22, 1971, the insurer’s counsel complained to the board about its failure to set a hearing date for consideration of this application. Counsel also in
1. We examine first the insurer’s contention that an award based on the April, 1970, injury is beyond the jurisdiction of the board because the employee never filed a claim for that injury.
Even if we assume that the claim filed January 18, 1973, does not, by its terms, include the April injury,
It was the insurer in this case which raised the question of the April 2, 1970, injury, and not the employee. It is clear from the evidence before the member that the insurer had investigated and knew of the nature and extent of the April, 1970, injury. The medical evidence before the member warranted the finding adopted by the board that the 1970 injury so aggravated the earlier injury as to amount to a new injury and a new and separate disability period. In these circumstances, the insurer cannot complain that it was misled by the employee’s claim for compensation even if that claim had referred only to the May, 1969, injury. Misstatements in a claim as to time of injury are only fatal if the employee intended to mislead and the insurer was misled. G. L. c. 152, § 49. Compare Hankowski’s Case, 339 Mass. 388, 391-392 (1959). See Joyce's Case, 350 Mass. 77, 81 (1966).
2. The insurer argues that the award of benefits based on an average weekly wage of $118.17 was not supported by the evidence. The board relied on the parties’ agreement that the average weekly wage was $118.17 in awarding compensation based on the April injury. See Carroll’s Case, 225 Mass. 203, 208 (1916). The language of the stipulation was not limited to the May, 1969, injury. As neither party at any later time made any showing that the average wage had changed, the board was warranted in applying that average in determining the compensation for the disability arising from the April, 1970, injury.
3. The insurer argues that the award of costs to the employee under G. L. c. 152, § 14, was error as a matter of law. The award in this case appears to have been based on the finding by the board of an illegal discontinuance.
Given the nature of this hearing, as one primarily concerning the continuance of compensation, reasonable costs under G. L. c. 152, § 12A, as appearing in St. 1972, c. 742, § 6, should be awarded. The assessment of such costs is a matter for the board. Compare Lambert’s Case, 325 Mass. 516, 519 (1950); Ramalhete v. Uni-Royal, Inc., 4 Mass. App. Ct. 597, 600 (1976).
Paragraph 7 of the judgment (the award of costs) is vacated, and the balance of the judgment is affirmed. The case is remanded to the Superior Court for recommittal to the Industrial Accident Board for a determination of the amount of costs to be awarded the employee under G. L. c. 152, § 12A, as amended. The new judgment will also update the amount of interest to be awarded the employee under G. L. c. 152, § 50.
So ordered.
Eight separate hearing dates were scheduled at long intervals, concluding on November 15, 1976. The single member’s decision was not filed until January 3, 1979.
No copy of this claim has been filed with this court. The member’s decision describes the claim as for compensation from and after May 6, 1969.
Morse’s Case, 345 Mass. 776 (1963), and McHugh’s Case, 1 Mass. App. Ct. 803 (1973), are distinguishable. They held that voluntary payments are not an admission of liability. In this case, the employee has not claimed that the insurer made such an admission; he asserts merely that the insurer has recognized that a claim has been asserted.
The present factual pattern is unlikely to reoccur because the procedure for processing applications for discontinuance and other benefits