Decision  Michael Bakanosky v. Marco Construction

Date:	03/23/2006
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 029472-03
Location:	Boston

• Employee: Michael Bakanosky
• Insurer: New Hampshire Insurance Co.
• Respondent: Workers' Compensation Trust Fund

HORAN, J. The insurer appeals from a decision in which an administrative judge denied its petition for § 37 reimbursement (the "Second Injury Fund"), on the basis that it had not proved the employer had personal knowledge of the employee's pre-existing impairment -- a statutory requirement.¹ We affirm.

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. . . .

There shall be no reimbursement under this section unless the employer had personal knowledge of the existence of such pre-existing physical 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. Proof of the pre-existence of such impairment shall be established only by the production of medical records existing prior to the date of employment or retention in employment of the employee. Nothing in this paragraph shall be construed to allow employers to compel an employee or job applicant to disclose any information regarding physical impairments in violation of any applicable law.

(Emphasis added).