Decision  Joseph A. Upton v. Suffolk County House of Correction

Date:	12/21/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Number 033057-08
Location:	Boston

• Employee: Joseph A. Upton
• Employer: Suffolk County House of Correction
• Self Insurer: Commonwealth of Massachusetts

KOZIOL, J. The employee appeals from a decision denying his claim for benefits¹ stemming from an emotional injury resulting from a November 25, 2008 meeting, conducted on work premises during work hours, with representatives of the employer.² Following a four-day hearing,³ the administrative judge concluded that the November 25, 2008 meeting was a bona fide personnel action and, accordingly, any emotional injury resulting from it was not compensable under the applicable provisions of § 1(7A).⁴ For the reasons that follow, we reverse the decision and recommit the matter for a hearing de novo on the issues of disability and the extent thereof.

¹ The employee sought § 34 total incapacity or, in the alternative, § 35 partial incapacity benefits, from November 26, 2008 and continuing, medical benefits under §§ 13 and 30, § 50 interest, and attorney’s fees and costs under § 13A. (Tr. I, 3.) At oral argument before the reviewing board, the parties represented that the employee had returned to work. Consequently, employee’s counsel represented that the employee was seeking a closed period of weekly incapacity benefits. Following oral argument, the parties reported that the employee returned to work on October 20, 2010. (See November 4, 2011 correspondence to the board on behalf of the employee.)

²  Although the employee also testified about other events that occurred at work between August 2008 and the November 25, 2008 meeting, the impartial medical examiner opined that the November meeting “was the predominant contributing cause of the employee’s emotional disability,” and the parties agreed “that the employee prevails on his claim depending on the legal effect of a November 25, 2008 interview (or meeting) the employee had with self-insurer’s [sic] investigators.” (Dec. 7, 8.)

³ Herein, we reference the transcripts for these dates as follows: January 6, 2010 as Tr. I; February 5, 2010 as Tr. II; February 26, 2010 as Tr. III; and March 16, 2010 as Tr. IV.

⁴ General Laws c. 152, § 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 to be a personal injury within the meaning of this chapter.