Decision  Peter Zinkevich (deceased) and Delores Zinkevich (claimant) v. Woolworth Corp.

Date:	10/29/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 037100-92
Location:	Boston

• Employee: Peter Zinkevich (deceased)
• Plaintiff: Delores Zinkevich [1]
• Insurer: Insurance Company of North America

COSTIGAN, J. In 1995² the employee accepted the insurer’s oral offer to settle his workers’ compensation case for $50,000. The proposed lump sum settlement was to be presented to an administrative judge on February 23, 1995, for approval pursuant to G. L. c. 152, § 48.³ The employee died on February 22, 1995.⁴ Neither the employee nor the insurer had signed a lump sum settlement agreement prior to the employee’s death. When the insurer learned of the employee’s death, it informed his attorney that it would not honor its agreement to settle. Over the ensuing seven years, the administrator of the employee’s estate sought to enforce the oral agreement in both this department and the superior court. See G. L. c. 152, § 12. This tortuous procedural trek is summarized in the "Agreed Statement of Facts," executed by the parties on April 8, 2002, on which this case was tried before the administrative judge whose decision we review:

1. On or about July 29, 1992, Peter Zinkevich (hereinafter referred to as "the Employee") sustained an industrial accident resulting in a fractured calcaneus while in the employ of Woolworth Corporation (the Employer). Additionally, on September 11, 1993, the Employee’s leg gave way and he fell, injuring his shoulder.

2. Insurance Company of North America ("INA"), thereafter Century Insurance Company (hereinafter referred to as "the Insurer"), subsequently accepted the employee’s injuries as compensable and commenced payment of weekly disability benefits.

3. In 1995, the Employee’s counsel, Constance Morrison, Esquire, reached an oral agreement with the Insurer redeeming liability for the Employee’s injuries in the amount of $50,000.00.

4. A Section 10A conference was scheduled for February 23, 1995. . . .

5. The Employer signed Form 116A, consenting to the settlement amount of $50,000.00. . . .

6. On the evening of February 22, 1995, the date before the scheduled conference, the Employee became ill and died. . . .

7. Attorney Morrison prepared lump sum papers . . . which were unexecuted and unfiled at the time of Mr. Zinkevich’s death and had not been transmitted to the Insurer.

8. When apprised of Mr. Zinkevich’s death, Defense Counsel Jennifer Hylemon expressed inability to proceed on a lump sum hearing. Subsequently, the Insurer denied liability for the lump sum and the experience-modified Employer rescinded its consent to the lump sum settlement.

9. The matter was subsequently reassigned before Administrative Law Judge William A. Pickett on April 5, 1996.

10. Administrative Law Judge Pickett declined to approve the settlement for the reasons set out in his letter of April 25, 1996. . . . ["Since the papers presented to me on April 5, 1996 have no signature, I assumed the agreement to lump sum was all oral . . . The Department of Industrial Accidents lacks authority to enforce its order or decisions. While it may approve or disapprove proposed lump sum agreements, the Department (of which the Reviewing Board is a part) has no recourse authority [sic] to determine whether or not a binding oral contract for lump sum has been entered into this case [sic]. In my view, there is no administrative remedy within the Department of Industrial Accidents. So ordered."]

11. Attorney Morrison then filed suit against Century in Worcester Superior Court. Century’s Motion to Dismiss was allowed and judgment entered in its favor on December 8, 1997.⁵

12. Subsequently, Attorney Morrison sought to have the matter heard by the Reviewing Board of the Department of Industrial Accidents . . . but was informed by Joseph W. Jennings, III., then Senior Judge, that the Reviewing Board had no jurisdiction over the issue involved. . . .

13. A claim was subsequently filed with the Department of Industrial Accidents. . . .

14. That claim was denied at § 10A conference. . . .

15. The denial of the claim was appealed and scheduled for hearing.

16. The claim was amended prior to hearing to add a claim for benefits under M. G. L. Chapter 152, Section 31. The amended claim and the claim to enforce lump sum were withdrawn when reached for Section 11 hearing on October 14, 1999.

17. Another claim was filed on or about September 8, 2000, seeking approval of the settlement agreement. . . .

18. That claim was conferenced on June 25, 2001 following which a DENIAL OF PAYMENT was filed on June 26, 2001. . . .

19. That Denial of Payment was appealed in a timely fashion. . . .

(Joint Exhibit 1.) The administrative judge found the facts as agreed by the parties. (Dec. 4.)

¹ As administrator of the estate of Peter Zinkevich.

² Neither the agreed statement of facts on which the enforcement claim was tried, (Joint Exhibit 1), nor the administrative judge’s decision reflects the date in 1995 on which the oral settlement agreement was reached. It appears to have been on or shortly prior to February 21, 1995, when the employer’s written consent to the settlement was executed. (Joint Exhibit 1, par. 5.)

³ The record indicates that the proceeding scheduled on February 23, 1995 was a § 10A conference on a claim. (Exhibit A to Joint Exhibit 1.) Our review of the board file, see Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3 (2002), reflects that the employee was claiming permanent and total incapacity benefits under § 34A. It appears that the settlement agreement was reached in compromise of that claim.

⁴ There is no contention that the employee’s death was causally related to his 1992 orthopedic industrial injury for which he was receiving weekly incapacity benefits at the time of his death.

⁵ Because this stipulation did not reveal the nature of the suit, as we are permitted to do, see footnote 3 supra, we have examined the contents of the board file. The claimant filed suit against the workers’ compensation insurer seeking damages under G. L. c. 93A for an alleged violation of the oral lump sum settlement agreement to pay the employee $50,000. The insurer moved to dismiss the complaint pursuant to Mass. R. Civ. P. 12(b)(1) and (6) on the grounds that the Department of Industrial Accidents had exclusive subject matter jurisdiction over the claimant’s/plaintiff’s action and that the exclusivity provisions of G. L. c. 152 barred such an action under c. 93A. Holding that the dispute over the lump sum settlement agreement fell within the exclusive jurisdiction of the reviewing board, subject to review by the Appeals Court, the court allowed the insurer’s motion and dismissed the complaint.