Decision  Joane Estey v. Burns International Security

Date:	02/26/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 060612-93
Location:	Boston

• Employee: Joane Estey
• Employer: Burns International Security
• Insurer: Travelers Insurance Company

COSTIGAN, J. The employee appeals from the decision of an administrative judge rejecting her challenge to the method by which the insurer compensated her for prescription medications causally related to her 1993 industrial injury,¹ and denying her claim for § 14 penalties. Finding merit in the employee’s appeal as to the § 30 claim, we reverse the judge’s decision. Because the issue presented by that claim was one of first impression, however, the insurer’s defense was not unreasonable. The employee is not entitled to § 14 penalties.²

¹ By way of background, the Board file reflects that on June 20, 1993, the employee, then fifty-one years old, stepped on a rock while performing her rounds as a security guard for the employer. She fractured her left ankle and injured her low back. Based, we assume, on the locus of her contract of hire, the insurer paid her benefits under Connecticut’s workers’ compensation statute for the left ankle injury only. In 1994, the employee filed a claim in Massachusetts, where she had been injured, for weekly incapacity and medical benefits from and after the injury date. She alleged injuries to her left leg, left ankle and back. By hearing decision filed on November 30, 1995, the administrative judge awarded the benefits sought by the employee for the injuries claimed, allowing the insurer a credit for benefits paid in the other jurisdiction. The employee exhausted the § 34 statutory maximum and in early 1997, she filed a claim for § 34A permanent and total incapacity benefits and medical benefits. By amended hearing decision filed on August 6, 1998, the administrative judge found that the employee was permanently and totally incapacitated based on her left leg, left ankle and low back complaints and a persistent pain syndrome likely due to reflex sympathetic dystrophy. The insurer appealed that decision to the reviewing board but later withdrew its appeal.

² The administrative judge did not list § 14(1) as part of the employee’s claim, (Dec. 1), but the employee included it in her statement of claim at hearing, (Employee Ex. 1; Tr. 5-6), and the insurer expressly denied it was liable for the statutory penalty. (Insurer Ex. 1; Tr. 7.)