Employee: Nigel Vincent
Employer: Brockton Neighborhood Health Center
Insurer: Hartford Underwriters Insurance Co.
Board No.: 035824-05

(Judges Costigan, McCarthy and Horan)

Charles Berg, Esq., for the employee at hearing
James N. Ellis, Esq., for the employee on appeal
John J. Canniff, Esq., for the insurer

COSTIGAN, J. The parties cross-appeal from the decision of an administrative judge who found that the employee had suffered a compensable emotional injury at work, under the provisions of G. L. c. 152, § 1(7A), and awarded medical benefits, but did not award weekly incapacity benefits. The employee challenges the judge's finding that from and after March 30, 2005, the first date of alleged disability, (Dec. 2), he was "fully able to obtain and sustain employment" with a different employer. (Dec. 10.) He argues he was entitled to § 34 total incapacity benefits while he looked for such work. We summarily affirm the decision as to the employee's appeal.

The insurer argues the judge misconstrued the provisions of § 1(7A) [1]in finding the employee sustained a compensable personal injury. For the reasons that follow, we affirm the decision as to the insurer's appeal.

The employee worked as a medical record scanner for the employer. His girlfriend at the time also worked there in the same capacity. On March 25, 2005, the employee's supervisor, Jason Brogan, told him that a co-employee had reported seeing the employee and his girlfriend "making out" in their workroom. The employee felt embarrassed, and experienced a panic attack, with symptoms of shortness of breath, racing heart, and nausea. He left work, and remained home over the weekend. When he returned to work, he again experienced panic attacks, and left after two days. As of the March 9, 2007 hearing, the employee had not returned to work for that employer. [2] (Dec. 5-6.)

The insurer argues the judge erred in allowing the employee to testify as to the allegation by the co-employee, as related to him by his supervisor, to which the insurer objected on double hearsay grounds. The insurer further contends that because the improperly admitted hearsay statement was the basis of the employee's emotional injury claim, the judge's decision should be reversed, and the employee's claim denied and dismissed. We disagree.

The employee was allowed to testify about the statement of his co-employee, as he heard it from his supervisor, only to establish what he was told and to what he reacted, i.e., the res gestae of his emotional injury claim, not to establish the truth of the statement. See P.J. Liacos, Handbook of Massachusetts Evidence, § 8.2.2 (7th ed. 1999). In overruling the insurer's objection, the judge acknowledged that whether the statement was true was irrelevant: "I am going to allow it, because I think it more goes to his state of mind. It doesn't matter to me the truth of what it [sic] was said." (Tr. 17-18.)

Moreover, contrary to the insurer's argument, the fact that the employee's supervisor relayed the co-employee's statement to the employee does not shield the incident within the bona fide personnel action exclusion for work-related emotional injuries. See footnote 1, supra. The judge determined the employee's injury was caused by the co-employee's comment; [3] that the comment was passed on by the supervisor does not make the causative factor a bona fide personnel action. See Agosto v. M.B.T.A., 21 Mass. Workers' Comp. Rep. 281, 283 (2007)(not every statement of superior to an employee qualifies as bona fide personnel action). Moreover, the conduct of a co-employee, even if it results in an administrative action by an employer -- here, the employee's supervisor questioning him on the matter -- does not constitute a bona fide personnel action as contemplated in § 1(7A). Avola v. American Airlines Co., 20 Mass. Workers' Comp. Rep. 293, 298-299 (2006).

The decision is affirmed.

So ordered.

Patricia A. Costigan
Administrative Law Judge
William A. McCarthy
Administrative Law Judge
Mark D. Horan
Administrative Law Judge

Filed: October 20, 2008

[1] Section 1(7A) provides, in pertinent part:

Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment. . . . No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion or termination except such action which is the intentional infliction of emotional harm shall be deemed a personal injury within the meaning of this chapter.

[2] In May 2006, the employee began employment as a customer service representative for a company that sold school uniforms to parochial schools. He was still employed there at the time of the hearing. (Tr. 28-29.) The employee's claim sought § 34 total incapacity benefits or, in the alternative, § 35 partial incapacity benefits, from March 30, 2005 to May 29, 2006. (Dec. 2.)

[3] The judge found:

By his own admission in Court, and to the § 11A examiner, the employee was not upset by the fact that his supervisor, Mr. Jason Brogan, spoke to him about [the co-worker's] allegations. He acknowledged, and I so find, that Mr. Brogan's actions were done pursuant to his supervisory responsibility to investigate the alleged incident. Mr. Brogan's action was a bona fide personnel action. The employee was "shocked" and "embarassed" not by Mr. Brogan's action, but rather by the accusation of a co-worker. . . He was also upset as he felt [the co-worker] was "trying to get Mr. Brogan in trouble."

I accept and adopt the opinion of Dr. Krainin [the impartial psychiatric examiner] and find that the accusation of the co-employee triggered and precipitated an acute episode, and was the predominant cause of an acute panic attack.

(Dec. 9.)