Decision

Decision  Raymond F. Gaines v. Town of Adams

Date: 06/27/2019
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 069406-76
Location: Boston
  • Employee: Raymond F. Gaines
  • Employer: Town of Adams
  • Insurer: Royal Insurance Company

LONG, J.  The insurer appeals from an administrative judge’s decision wherein the judge invoked a two-year statute of limitations to limit the period of time that the insurer was entitled to reimbursement from the employer for cost of living adjustments (hereinafter “COLA”), pursuant to M.G.L. c. 152, § 34B and § 65(2).2 Finding merit in both of the insurer’s appellate arguments, we reverse the decision and order the employer to reimburse the insurer for all claimed COLA reimbursements. 

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M.G.L. c. 152, § 34B provides in pertinent part:

Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall have his weekly benefit adjusted, without application, in accordance with the following provisions; provided, however, that no increase in benefits shall be payable which would reduce any benefits the recipient is receiving pursuant to federal social security law.

                                                                  ….

(c) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit.  Insurers shall be entitled to quarterly reimbursements for supplemental benefits, pursuant to section sixty-five, for cases involving injuries that occurred on or before October first, nineteen hundred and eighty-six, and for those cases occurring thereafter, to the extent such supplemental benefits are due to the increase of greater than five percent in the average weekly wage in the commonwealth in any single year.  No self-insurer, self-insurance group or municipality that has chosen non-participation in the assessment provisions for funding such reimbursements pursuant to section sixty-five shall be entitled to such reimbursements. 

M.G.L. c. 152, § 65 provides in pertinent part:

(2) There is hereby established a trust fund in the state treasury, known as the Workers’ Compensation Trust Fund, the proceeds of which shall be used to pay or reimburse the following compensation: (a) reimbursement of adjustments to weekly compensation pursuant to section thirty-four B; … No reimbursements from the Workers’ Compensation Trust Fund shall be made under clauses (a) to (g), inclusive, to any non-insuring public employer, self-insurer or self-insurance group which has chosen not to participate in the fund as hereinafter provided.

                                                                  . . . .

No private employer with a license to self-insure and no private self-insurance group shall be required to pay assessments levied to pay for disbursements under clauses (a) to (g), inclusive, and neither the commonwealth, nor any city, town, or other political subdivision of the commonwealth  or public employer self-insurance group shall be required to pay assessments levied to pay for disbursements under clause (a), (b), (c), (d), (e), (f) or (g) if such employer or group has given up an entitlement to reimbursement under said clauses by filing a notice of non-participation with the department.  Such notice shall be made to the commissioner on or before March first of any year in order to be effective as of July first of that year.  Notice of non-participation shall be irrevocable and shall be signed by the chief executive officer or board of trustees of the employer or group

                                                                 . . . .

A public employer which has a policy with a workers’ compensation insurer shall have the ability to file a notice of non-participation as specified above; provided, however, that its insurer shall not be entitled to reimbursement from the Workers’ Compensation Trust Fund, and the insured public employer shall be required to reimburse its insurer for any payments the insurer makes on its behalf that would otherwise be subject to reimbursement under clauses (a) to (g), inclusive.

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