The issues presented in the instant case concern the scope of G. L. c. 152, § 23, the exclusivity provision in the Workers’ Compensation Act (Act). After injuring his shoulder, the plaintiff, Leonard Kniskem, negotiated a workers’ compensa
Background. On February 1, 2001, Kniskem went to Plywood Plus, a lumber yard owned and operated by Toohey’s Lumber Center, Inc. He had gone to Plywood Plus at Melkonian’s request to pick up some large windows for a house that Melkonian was building. As he was lifting a window, Kniskem slipped and fell on the ice in the parking lot and the window fell on him, fracturing his shoulder. There was no documentation regarding Kniskem’s status — either as an employee or an independent contractor. He had just begun working for Melkonian.
Thereafter, Kniskem filed a workers’ compensation claim against Melkonian. Melkonian’s workers’ compensation insurer originally rejected Kniskem’s claim, contending he was an independent contractor.
Meanwhile, on June 26, 2001, Kniskem filed a personal injury complaint in Superior Court against Toohey’s Lumber Center. After Melkonian’s insurer rejected Kniskem’s workers’ compensation claim, Kniskem amended the complaint to add Melkonian as a defendant, alleging that Melkonian was negligent in “directing and requiring [Kniskem] to work” in the icy conditions at Toohey’s Lumber Center. It alleged that “[o]n information and belief, [Melkonian] claims that [Kniskem] was
On July 26, 2002, counsel agreed to continue a hearing at the Department of Industrial Accidents (DIA) until November 7, 2002. According to counsel for Kniskem, “[t]he reason for the continuance, primarily, is that the issue of employee/independent contractor is likely to be otherwise decided in pending tort litigation. The parties reasonably expect this issue to be resolved by said litigation, or by settlement at the DIA, prior to 11/7/02.”
On November 7, 2002, the parties entered into an agreement for redeeming liability by lump sum pursuant to G. L. c. 152, § 48. Kniskem accepted a lump sum payment of $8,500 for the injury occurring on February 1, 2001. The lump sum settlement form states: “Please give a brief history of the case and indicate why the settlement is in the employee’s best interest.” In response, the parties wrote: “The claimant alleged he was employed by [Melkonian] when he fell and injured his right shoulder off premises. The employer denies the claimant was an employee, and insists instead he was an independent contractor. The employee has worked since the accident and received medical care. The employee is pursuing a tort claim at present, and the parties agree that as this is a no-liability settlement,[
On November 22, 2002, default was entered against Melkonian for failure to answer the amended complaint filed in Superior Court. In May, 2004, Kniskem settled his claim against Toohey’s Lumber Center for $42,500. On June 2, 2004, Kniskem moved for an assessment of damages. In September, 2004, Melkonian moved to remove the default, claiming that he had
In February, 2005, Melkonian and Kniskem entered into a “stipulation on assessment of damages,” in which they agreed that “Kniskem’s gross compensatory damages total $85,000.” In March, 2005, a judgment by default upon assessment of damages was entered pursuant to Mass.R.Civ.P. 55(b)(2), as amended, 423 Mass. 1402 (1996). Melkonian immediately filed a motion to set aside the default judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), and rule 60(b)(6), relying on the exclusivity provision of the Act.
The role 60(b)(6) motion was allowed by a different judge on the ground that Kniskem “would recover twice against the same defendant for the same injury though such a result is expressly prohibited by G. L. c. 152, § 23.”
Thereafter, both parties filed for summary judgment. A third Superior Court judge allowed Melkonian’s motion for summary judgment based on the exclusivity provision.
“If an employee files any claim or accepts payment of compensation on account of personal injury under this chapter, or submits to a proceeding before the department under sections ten to twelve, . . . such action shall constitute a release to the insurer of all claims or demands at common law, if any, arising from the injury. If an employee accepts payment of compensation under this chapter on account of personal injury or makes an agreement under section forty-eight, such action shall constitute a release to the insured of all claims or demands at common law, if any, arising from the injury.”
In the instant case, Kniskem filed a claim and accepted payment of compensation “on account of personal injury under” G. L. c. 152 pursuant to an agreement he entered into under G. L. c. 152, § 48. The exclusivity provision by its express terms applies here, thereby precluding suit against the insured employer for the same injury for which the employee received workers’ compensation.
Kniskem contends nevertheless that the exclusivity provision is limited to employees, and that that issue was left unresolved in the lump sum settlement language approved by the DIA. The problem with this argument is that employee status is a condition to recovery of the lump sum settlement under the Act; if Kniskem is an independent contractor, and not an employee, he is outside of the scope of the Act and could not have received a lump sum settlement pursuant to § 48. See Nason, Koziol & Wall, Workers’ Compensation § 8.1, at 173 (3d ed. 2003).
As explained by the Supreme Judicial Court, “[t]he exclusivity provision has been the cornerstone of our Workers’ Compensation Act. Our exclusivity provision is very broad. The Legislature has had opportunities to narrow its scope, and has not done so. ‘Any change in compensation law which would permit a covered employee to recover compensation benefits
Motion for relief from judgment. The question then becomes whether it was an abuse of discretion to allow a rule 60(b)(6) motion to enforce the exclusivity requirement of the Act. As a threshold matter, Melkonian must establish that the grounds asserted for the rule 60(b)(6) motion are not embraced by rule 60(b)(l)-(5). Kniskem argues that Melkonian was essentially seeking relief for excusable neglect covered by role 60(b)(1). Melkonian, however, could not rely on rule 60(b)(1) because of the prior judicial determination that his proffered reasons for failing to file an answer were “patently false.” The judge also did not analyze the motion from that perspective. Instead he relied solely on the exclusivity provision.
“A judge considering a rule 60(b)(6) motion may consider whether the moving party has a meritorious . . . defense[,] . . . whether extraordinary circumstances warrant relief . . . and whether the substantial rights of the parties . . . will be affected by granting the motion” (quotations omitted). Owens v. Mukendi, 448 Mass. 66, 72 (2006). As explained above, Melkonian has a meritorious defense based on the exclusivity provision. The substantial rights of both parties are also affected, as a
Summary judgment. Finally, the exclusivity provision compels the award of summary judgment for Melkonian. Once Kniskem filed a claim with the DIA contending that he was an employee of Melkonian, the DIA became the proper fomm to determine whether he was entitled to compensation. See Lee v. International Data Group, supra. Despite the insurer’s contention that he was an independent contractor,
Judgment affirmed.
In his deposition in the tort action, Melkonian stated that Kniskem was merely doing him a favor by picking up the windows.
A “no-liability” settlement is a settlement entered into “prior to the establishment of liability.” G. L. c. 152, § 48(2).
Kniskem’s counsel deposed Melkonian in November, 2003. He also communicated with Melkonian’s counsel in a manner that clearly indicated that he was still pursuing the tort action against Melkonian despite the workers’ compensation settlement. Kniskem’s counsel in the tort action was different from his counsel in the DIA proceedings.
The judge did not address rule 59(e).
The summary judgment decision also relied on the doctrine of judicial
We note that the language in the lump sum agreement identified by Kniskem as carving out an exception to the exclusivity provision is ambiguous. After reciting the dispute over whether the claimant is an employee or independent contractor, the agreement then refers to the claimant as an employee multiple times. The tort claim that is purportedly being preserved was not a stand-alone law suit but a claim added to a third-party action. The language in the agreement is vague enough to be read either as Kniskern argues or as simply a reference to the third-party action and perhaps other claims that could not be barred, such as wrongful discharge. See G. L. c. 152, § 48(3). Regardless, any ambiguity in the attempted exception is irrelevant for the reasons stated above.
That contention justified Kniskern’s amendment of his third-party complaint to include Melkonian as an additional defendant pending the determination of his status at the DIA. If the DIA decided Kniskem was an independent contractor and not an employee, the bar to proceeding in tort would be lifted.