Decision  Theresa Morales v. Lutheran Home of Brockton

Date:	06/20/2006
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 004461-03
Location:	Boston
Referenced Sources:	James Carmilia v. General Electric

• Employee: Theresa Morales
• Insurer: CNA Insurance Company
• Respondent: Workers’ Compensation Trust Fund

FABRICANT, J. The administrative judge awarded the insurer second injury fund reimbursement against the Workers’ Compensation Trust Fund ("Trust Fund") pursuant to G. L. c. 152, § 37,¹ but did not award § 50 interest. In so doing the judge was following our decision in Carmilia v. General Electric, 15 Mass. Workers’ Comp. Rep. 261 (2001), in which we concluded that sovereign immunity barred interest awards against the Trust Fund. The insurer challenges the Carmilia ruling in this appeal. We are persuaded by the argument the insurer now advances, and conclude that Carmilia was wrongly decided. We reverse the decision insofar as it failed to award § 50 interest.

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.

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. . . .