Decision  Robert E. Cleveland v. Corporate Limousine Service

Date:	01/04/2002
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 029529-99
Location:	Boston

• Employee: Robert E. Cleveland
• Employer: Corporate Limousine Service
• Insurer: Worcester Insurance Company and Workers’ Compensation Trust Fund

WILSON, J. The Workers’ Compensation Trust Fund ("Trust Fund") appeals from a decision in which an administrative judge ordered it to reimburse the insurer, under § 37, for amounts paid pursuant to a § 48 lump sum agreement within the first one hundred and four weeks of the death of the employee.¹ The Trust Fund contends that the decision is contrary to law, since § 37 bars reimbursement for "any amounts paid" within that period. Because we conclude that § 37 specifically limits the bar, in such circumstances as the present case presents, to "payments due during the first one hundred and four weeks from the date of the onset of disability or death," we reject the Trust Fund’s contention and affirm the decision. (Emphasis added).

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.

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, further, 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.

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. . . .

The office of legal counsel shall in all instances have the authority to defend claims against the fund. Such office shall have the right to contest any amount accredited to the above named sections which has been redeemed by an insurer by payment of a lump sum agreement pursuant to section forty-eight, but reimbursement shall not require the approval of the lump sum by said office or by the state treasurer. No reimbursement shall be made for payments due during the first one hundred and four weeks from the date of onset of disability or death, whether paid under an agreement, decision, or lump sum settlement.