Decision  Jose S. Sanches v. Framingham State Hospital

Date:	02/08/2007
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 042778-00
Location:	Boston

• Employee: Jose S. Sanches
• Employer: Framingham State Hospital
• Self Insurer: Commonwealth of Massachusetts

CARROLL, J. The employee appeals from a decision in which an administrative judge dismissed his liability claim for workers’ compensation benefits, due to its unappealed denial at a conference proceeding more than three years earlier. The judge based his decision on Cerasoli v. Hale Development, 13 Mass. Workers’ Comp. Rep. 267 (1999). In that case, we concluded that a general denial of an original liability claim in a § 10A conference order was presumed to be on the basis of liability, i.e., that the injury did not arise out of and in the course of the employment. G. L. c. 152, § 26. By failing to appeal the conference order, the employee therefore accepted that his injury was not compensable (see G. L. c. 152, § 10A[3]¹), and was precluded from bringing the same claim again. Cerasoli, supra at 269-270. We affirm the decision on appeal, and take the opportunity to clarify the reasoning of Cerasoli.

¹  General Laws c. 152, § 10A(3), provides:

Any party aggrieved by an order of an administrative judge shall have fourteen days from the filing date of such order within which to file an appeal for a hearing pursuant to section eleven. Such hearing shall be held within twenty-eight days of the department’s receipt of such appeal.

Failure to file a timely appeal or withdrawal of a timely appeal shall be deemed to be acceptance of the administrative judge’s order and findings, except that a party who has by mistake, accident or other reasonable cause failed to appeal an order within the time limited herein may within one year of such filing petition the commissioner of the department who may permit such hearing if justice and equity require it, notwithstanding that a decree has previously been rendered on any order filed, pursuant to section twelve.