Decision  Gary Bolduc v. New England Coffee Co.

Date:	09/06/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 040730-02, 027983-08
Location:	Boston

• Employee: Gary Bolduc
• Employer: New England Coffee Co.
• Insurer: Liberty Mutual Insurance Co., Travelers Insurance Co.

COSTIGAN, J. Liberty Mutual Insurance Company (Liberty) appeals from a decision ordering it to pay the employee benefits for a purported 2008 recurrence of a 2002 work injury. The rationale for the administrative judge’s award was that when the employee left work in June 2008, due to a marked increase in his back and left leg pain, Liberty commenced payment and voluntarily paid beyond the 180-day “without prejudice” period under G. L. c. 152, §§ 7 and 8.¹ The insurer on the risk in 2008 was Travelers Insurance Company (Travelers). The judge found as a fact that the employee suffered a new work-related injury in 2008 for which Travelers would have been liable, but for Liberty’s voluntary payment of benefits based on a recurrence of incapacity. Liberty argues that under the successive insurer rule, the judge erred by failing to hold Travelers liable for payment of compensation for what he found to be a new injury. 

¹  General Laws c. 152, § 7, provides, in pertinent part:

(1) Within fourteen days of an insurer’s receipt of an employer’s first report of injury, or an initial written claim for weekly benefits on a form prescribed by the department, whichever is received first, the insurer shall either commence payment of weekly benefits under this chapter or shall notify the division of administration, the employer, and, by certified mail, the employee, of its refusal of commence payment of weekly benefits.

General Laws c. 152, § 8, provides, in pertinent part:

(1) An insurer which makes timely payments pursuant to subsection one of section seven, may make such payments for a period of one hundred eighty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter.