Decision  Lori Cosgrove v. Penacook Place

Date:	05/02/2001
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 057423-95
Location:	Boston

• Employee: Lori Cosgrove
• Employer: Penacook Place
• Insurer: Managed Comp Insurance Co., Workers’ Compensation Trust Fund

MCCARTHY, J. The insurer’s appeal of an administrative judge’s decision in favor of the Workers’ Compensation Trust Fund brings to the reviewing board an issue of first impression arising out of the 1991 amendment of G.L. c. 152, § 37,¹  which narrows Second Injury Fund reimbursement by eliminating it for temporary incapacity benefits paid under §§34 and 35 of the Act. The judge denied the insurer’s petition for §37 reimbursement, because the employee and insurer had entered into a lump sum agreement for redemption of liability for the employee’s lower back injury, prior to any payment of weekly permanent and total incapacity benefits under §34A. We agree with the insurer that its right to §37 reimbursement is not contingent on actual prior payment of weekly §34A benefits. Instead, the inquiry in this §37 reimbursement case should be whether any amount paid under the lump sum agreement could reasonably be allocated as payment in redemption of future §34A benefits. And, if so, what percentage of that amount, up to seventy-five percent, should the Trust Fund pay? See G. L. c. 152, §37, paragraph 2. We therefore reverse the decision, and recommit the case for findings establishing an appropriate amount of §37 reimbursement.

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.