Decision  Robert C. Thibeault v. Sure Management Oil & Chemical Corp

Date:	06/22/2004
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 033727-79, 011283-96
Location:	Boston

• Employee: Robert C. Thibeault
• Employer: Sure Management Oil & Chemical Corp
• Insurer: Peerless Insurance Company, American Policyholders Insurance Company

COSTIGAN, J.Peerless Insurance Company, the first insurer in this successive insurer case, appeals from an administrative judge's decision on recommittal ¹ ordering it, for the second time, to pay the employee a closed period of G. L. c. 152, § 34, benefits for one month of incapacity in 1995, and § 30 medical benefits, which the judge found were related to left knee injuries the employee had suffered in 1979. The claim against American Policyholders, the successive insurer, was again denied and dismissed.² On its second appeal in this case, Peerless again argues that the judge erred by failing to find that the employee had sustained a second industrial injury, of a cumulative nature, for which American Policyholders was liable to pay benefits. We agree, and therefore reverse the decision.

 

 

 

¹ As the decision on recommittal contains all subsidiary findings of fact and general findings set forth in the first hearing decision, filed on May 29, 1997, plus additional subsidiary findings and general findings, as required by the reviewing board's decision of recommittal, Thibeault v. Sure Oil & Chem. Corp., 12 Mass. Workers' Comp. Rep. 472 (1998), references designated "Dec." herein are to the decision on recommittal filed on January 18, 2002.

² The employee started working in building maintenance for the employer in 1977, and was still employed there at the time of the 1996 hearing. (Dec. 4.) In 1979, and until January 20, 1980, Peerless was the workers' compensation insurer for the employer. From that date at least until 1995, American Policyholders was the workers' compensation insurer for the employer. (Peerless brief, 1.) Initially, the employee filed his claim against Peerless only. However, in November, 1995, at the § 10A conference on the employee's claim, the administrative judge allowed Peerless's motion to join American Policyholders to the proceeding, pursuant to 452 Code Mass. Regs. § 1.20. (Dec. 2.)