Decision  James Carmilia v. General Electric

Date:	05/16/2001
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No.
Location:	Boston

• Employee: James Carmilia
• Employer: General Electric
• Insurer: Electric Insurance, Workers’ Compensation Trust Fund

MAZE-ROTHSTEIN, J. In this case of first impression, the insurer and the Workers’ Compensation Trust Fund ("Trust Fund") cross-appeal a decision that awarded the insurer reimbursement pursuant to G.L. c. 152, §37, for benefits paid in a lump sum agreement.¹ The insurer contends that it is entitled to §50 interest on the award, which was omitted from the order. We apply the doctrine of sovereign immunity in rejecting the insurer’s argument. The Trust Fund contends it was error to award any §37 reimbursement, because the lump sum agreement was executed prior to a payment or a finding and order of weekly §34A permanent and total incapacity benefits. For the reasons set out in Cosgrove v. Penacook Place, 15 Mass. Workers’ Comp. Rep. ____ (May 2, 2001), we disagree. The Trust Fund also contends error in the failure to eliminate the lump sum settlement allocation of $95,000.00 to spousal inchoate rights from the pool of reimbursable benefits, and by allowing the §37 petition to go forward without the requisite proof under 452 Code Mass. Regs. § 1.07 (2)(l) . We also disagree with these arguments. We therefore affirm the decision.

¹ Section 37, as amended by St. 1991, c. 498, § 71, provides, in pertinent part:

Whenever an employee who has a known physical impairment which is due to any previous accident, disease or any congenital condition and is, or is likely to be, a hindrance or obstacle to his employment, and who, in the course of and arising out of his employment, receives a personal injury for which compensation is required by this chapter and which 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, the insurer or self-insurer shall pay all compensation provided by this chapter. If said subsequent personal injury is caused by the preexisting impairment or if said subsequent personal injury of such an employee shall result in the death of the employee, and it shall be determined that the death would not have occurred except for such pre-existing physical impairment, the insurer shall pay all compensation provided by the chapter.

Insurers making payments under this section shall be reimbursed by the state treasurer from the trust fund created by section sixty-five in an amount not to exceed seventy-five percent of all compensation due under sections thirty-one, thirty-two, thirty-three, thirty-four A, thirty-six A, and where benefits are due under any of such sections, section thirty; . . . provided, further, that no reimbursement shall be made for any amounts paid during the first one hundred and four weeks from the onset of disability or death.

There shall be no reimbursement under this section unless the employer had personal knowledge of the existence of such pre-existing impairment within thirty days of the date of employment or retention of the employee by such employer from either a physical examination, employment application questionnaire, or statement from the employee.

                                               . . .

The office of legal counsel shall in all instances have the authority to defend claims against the fund. Such office shall have the right to contest any amount accredited to the above named sections which has been redeemed by an insurer by payment of a lump sum agreement pursuant to section forty-eight, but reimbursement shall not require the approval of the lump sum by said office or by the state treasurer.