Decision  Annie Talbert V. Polaroid Corporation, Inc.

Date:	11/05/2021
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 002448-13,- 000354-14
Location:	Boston, MA
Referenced Sources:	Annie Talbert v. Polaroid Corporation, Inc. (I)

• Employee: Annie Talbert
• Employer: Polaroid Corporation, Inc.
• Self Insurer: Polaroid Corporation, Inc. (Insolvent), Employers Reinsurance Corp. (Reinsurer), Workers’ Compensation Trust Fund (3rd Party Respondent)

KOZIOL, J. The present appeal arises from the insolvency of the self-insurer, Polaroid Corp., Inc, and concerns an issue we identified as being unripe for adjudication in our earlier decision in Talbert v. Polaroid Corp., Inc., 30 Mass Workers’ Comp. Rep. 271, 274 n.4 (2016), hereinafter Talbert I. The reinsurer (ERC) now appeals from a decision denying and dismissing its claim for reimbursement from the Workers’ Compensation Trust Fund (WCTF), pursuant to §§ 34B(c) and 65(2)(a),¹ for cost of living adjustments (COLA) paid to the employee in conjunction with her receipt of weekly benefits under § 34A. (Dec. II, 7.) We affirm the judge’s decision.

¹ General Laws, c. 152, § 34B(c), states, in pertinent part:

Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall have his weekly benefit adjusted, without application, in accordance with the following provisions; . . . .
                                                   . . . .

(c) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit. Insurers shall be entitled to quarterly reimbursements for supplemental benefits, pursuant to section sixty-five, for cases involving injuries that occurred on or before October first, nineteen hundred and eighty-six, and for those cases occurring thereafter, to the extent such supplemental benefits are due to the increase of greater than five percent in the average weekly wage in the commonwealth in any given year. No self-insurer, self-insurance group or municipality that has chosen non-participation in the assessments for funding such reimbursements pursuant to section sixty-five shall be entitled to such reimbursements.

General Laws, c. 152, § 65(2)(a) states in pertinent part:

(2) There is hereby established a trust fund in the state treasury, known as the Workers’ Compensation Trust Fund, the proceeds of which shall be used to pay or reimburse the following compensation: (a) reimbursement of adjustments to weekly compensation pursuant to section thirty-four B; . . . . No reimbursements from the Workers’ Compensation Trust Fund shall be made under clauses (a) . . ., to any non-insuring public employer, self-insurer or self-insurance group which has chosen not to participate in the fund as hereinafter provided.