Decision

Decision  Paul S. Dickie v. Kesseli and Morse, Inc.

Date: 09/10/2009
Organization: Department of Industrial Accidents
Docket Number: DIA Board No: 002284-07
Location: Boston
  • Employee: Paul S. Dickie
  • Employer: Kesseli and Morse, Inc.
  • Insurer: AIM Mutual Insurance Co.

KOZIOL, J. The insurer appeals from an administrative judge's decision awarding the employee various periods of incapacity benefits under §§ 34 and 35 as a result of a repetitive stress injury to his left knee. The insurer argues the judge erred in finding that the employee gave notice of his injury to the insurer or insured "as soon as practicable" as required by M. G. L. c. 152, § 41,1 and that the claim should be denied and dismissed due to lack of notice.2 Finding no error, we affirm the decision.

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1 General Laws c. 152, § 41, states, in pertinent part:

No proceedings for compensation payable under this chapter shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof, and unless any claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment.

2 The insurer argues that the employee also failed to meet his burden of proving the insurer or the employer had knowledge of the injury and the insurer was not prejudiced by his failure to give notice. (Ins. br. 15-20.) Because the judge found the insurer gave notice of his injury "as soon as practicable," he committed no error in failing to make any findings of fact on the issues of knowledge and prejudice. Those factors come into play only when the judge finds that timely notice was not given. General Laws c. 152, § 44, provides:

Want of notice shall not bar proceedings, if it be shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice.

(Emphasis supplied).

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