| Date: | 05/25/1999 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 047735-95 |
| Location: | Boston |
- Employee: Joseph A. Garbarino
- Employer: Vining Disposal, Inc.
- Insurer: Providence Washington Insurance Company
LEVINE, J. The employee appeals from an administrative judge’s decision denying him workers’ compensation benefits pursuant to G. L. c. 152, § 27A. That section provides that if it is found that, at the time of hire, an employee knowingly and willfully made a false representation as to his physical condition which his employer relied upon in hiring him, when the employee knew or should have known that it was unlikely he could fulfill the duties of the job without incurring a serious injury, and an injury related to the misrepresented condition occurs, then the employee is not entitled to benefits under c. 152. The employee argues that the insurer has failed to prove the elements of § 27A. We hold that the administrative judge’s finding as to the first element of § 27A -- that the employee knowingly and willfully made a false representation as to his physical condition at the time of hire -- is based on an error of law; furthermore, there is need for the judge to revisit the issue of the employer's reliance (the second element). Therefore, we reverse the decision in part and recommit the case for further findings.