Insurers may request reimbursement from the Workers' Trust Fund when there is a second injury AND every element of MGL c. 152 § 37 has been satisfied.
The Insurer must prove:
- The employee has a known physical impairment which is due to any previous accident, disease, or congenital condition which;
- Is, or is likely to be, a hindrance or obstacle to his/her employment;
- The employee, in the course of and arising out of his employment, receives a personal injury for which compensation is required by M.G.L. c. 152;
- The subsequent personal injury results in a disability that is substantially greater by reason of the combined effects of such impairment and subsequent personal injury than that disability which would have resulted from the subsequent personal injury alone;
- Employer knowledge of the pre-existing physical impairment.
It is important to keep in mind that EACH of these 5 elements must be proven for reimbursement purposes. The Trust Fund has the right to defend all claims against the Fund and therefore may contest any reimbursement amount requested by an insurer.