Decision  Jeffrey Comeau v. Enterprise Electronics, Inc.

Date:	08/28/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 053255-93, 055388-95
Location:	Boston
Referenced Sources:	Jeffrey Comeau v. Enterprise Electronics

• Employee: Jeffrey Comeau
• Employer: Enterprise Electronics, Inc.
• Insurer: Liberty Mutual Insurance Co., Massachusetts Insurers Insolvency Fund

COSTIGAN, J. The employee and the Massachusetts Insurers Insolvency Fund (MIIF) cross-appeal from the administrative judge’s decision ordering MIIF to pay workers’ compensation benefits for the employee’s second work injury in this successive insurer case.¹ That injury occurred on October 2, 1995, when Eastern Casualty Insurance Company (Eastern), which has since been adjudicated insolvent,² insured the employer. Liberty Mutual Insurance Company (Liberty) was on the risk for the employee’s first work injury on December 21, 1993.³ MIIF argues that G. L. c. 175D, the statutory authority under which it operates, exempts it from liability for any claim against the insolvent entity as a successive workers’ compensation insurer. MIIF also contends that the judge committed multiple other errors. We agree that certain errors and omissions in the decision require recommittal, and that the order for MIIF to reimburse Liberty must be reversed as contrary to law. However, we do not agree that MIIF cannot, as a matter of law, be liable for benefits which would, but for Eastern’s insolvency, be payable by that successive insurer. To the extent the judge on recommittal may find that MIIF is liable for payment of ongoing benefits as a result of the employee’s 1995 injury claims against Eastern, the insolvent successive insurer, MIIF may be ordered to pay such benefits. Pending such findings on recommittal, we vacate the award of benefits against MIIF.

 

¹ Although the employee filed a timely appeal from the administrative judge’s decision, asserting that it was “[a]gainst the facts, law and evidence,” his extensive appellate brief concludes by stating the decision should be affirmed. (Employee br. 24). Therefore, we address only MIIF’s arguments.

² Eastern was declared insolvent effective June 9, 2010. (MIIF br. 3.)

³ Wausau Insurance Company was the actual insurer on risk for the employee’s 1993 injury. Wausau paid benefits and participated in the protracted litigation of its and the employee’s complaints and claims at least through July 2008, when it entered into § 19 agreements with the employee and Eastern. (Dec. 567-568; Ex. 10.) Wausau was subsequently acquired by Liberty. (MIIF br. 2, fn.1.) For ease of reference, we herein identify the insurer of the employee’s December 21, 1993 injury as Liberty.