Decision  Roque Pena v. Scully Signal Company

Date:	03/11/2022
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 023225-05
Location:	Boston, MA

• Employee: Roque Park
• Employer: Scully Signal Company
• Insurer: Arrowood Indemnity Co.
• Respondent: Workers' Compensation Trust Fund

FABRICANT, J. The insurer appeals from the administrative judge’s decision denying and dismissing its claim for ongoing payments pursuant to § 37, based on the decisions in Markos-Waiswilos v. Salem Hospital, 67 Mass. App. Ct. 904 (2006) and Home Ins. Co. v. Workers’ Compensation Trust Fund, 88 Mass. App. Ct. 189, 193 (2015), rev. den. 473 Mass. 1107 (2015).¹ (Dec. 7.) We affirm the judge’s decision.

¹ M.G.L. c. 152, § 37 states 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.

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, however, that the insurer is not a self-insurer, a group self-insurer or municipality that has chosen not to be subject to the assessments which fund said reimbursements; and, 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.