Decision  Francis Beatty, Maria Carvalho, Adolphus Gudron, Helena Raposo and Francis Yebba v. Harvard University (Insurer/Complainant) and Trust Fund (Respondent)

Date:	08/02/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 805744-85, 080211-90, 807089-76, 022896-90, 022746-10
Location:	Boston

• Employee: Francis Beatty, Maria Carvalho, Adolphus Gudon, Helena Raposo and Francis Yebba
• Insurer: Harvard University (Insurer/Complainant)
• Respondent: Trust Fund

COSTIGAN, J. The question presented by the self-insurer’s appeal is whether a departmental regulation imposing a two-year limitations period on petitions for reimbursement of § 34B cost-of-living (COLA) adjustments,² contradicts and renders impossible the proper application of that statute. See G. L. c. 152, § 5.³ The administrative judge concluded that it did not, and denied the self-insurer’s petitions seeking reimbursement of COLA supplemental benefits paid to employees more than two years before the petitions were filed.

¹ The claimants are non-interested parties in this appeal.

² General Laws c. 152, § 34B, provides, in pertinent part:

October first of each year shall be the review date for the purposes of this section.

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;

                                       . . .

(b) The death benefit under section thirty-one or the permanent and total disability benefit under section thirty-four A that was being paid prior to any adjustments under this section shall be the base benefit. The base benefit shall be changed on each review date by the percentage change as calculated in paragraph (a); the resulting amount shall be termed the adjusted benefit and is the amount of the benefit to be paid on and after the review date. If the adjusted benefit is larger than the base benefit, the difference shall be termed the supplemental benefit. In no instance shall the adjusted benefit under this section be greater than three times the base benefit.

(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 single year.

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

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. . . .

³ The statute provides, in pertinent part:

The commissioner shall promulgate rules and regulations consistent with this chapter for carrying out the functions of the department. . . . Neither an administrative judge nor the reviewing board shall have the authority to repeal, revoke, or otherwise set aside a regulation promulgated by the commissioner; provided, however, that if in any proceeding within the division of dispute resolution it is found that the application of any section of this chapter is made impossible by the enforcement of any particular regulation, the administrative judge or reviewing board shall not apply such regulation during such proceeding only.

(Emphasis added.)