Decision  Kieran M. Kelly v. Walsh Hannon & Gladwin Specialists

Date:	12/02/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 038546-06
Location:	Boston

• Employee: Kieran M. Kelly
• Petitioner: Arbella Insurance Co.
• Respondent: Workers' Compensation Trust Fund

FABRICANT, J. The insurer/petitioner in a second injury fund claim pursuant to § 37¹ asserts error, inter alia, in the administrative judge's assessment of the allocation of lump sum settlement proceeds under Cosgrove v. Penacook Place, 15 Mass. Workers' Comp. Rep. 166 (2001)( Cosgrove I). Specifically in issue is the judge's consideration of the absence of a pending claim for benefits pursuant to § 34A at the time of the settlement. We disagree with the insurer that Cosgrove I altogether prohibits inclusion of this factor when determining the amount of settlement proceeds subject to § 37 reimbursement. Instead, we conclude that the judge's analysis of the potential exposures under §§ 34, 35, and 34A, compared to the modest net proceeds paid in the lump sum settlement, rationally yielded a denial of the insurer's petition. Accordingly, we affirm the decision.  

¹ General Laws c. 152, § 37, 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.

                                                     . . .

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, however . . . 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.