Second injury claim, MGL c. 152, § 37A

Section 37A Insurers may request reimbursement from the Trust Fund when there is a second injury AND every element of MGL c. 152 § 37A has been satisfied.

Documenting a § 37A claim

The Insurer must prove:

• The employee is a U.S. war veteran.
• Has a disability as a result of his/her military service.
• Has been certified as such by the United States Veterans Administration.
• Who in the course of and arising out of his/her employment, receives a work-related injury which is compensable under MGL c. 152;
• Which is aggravated or prolonged by such disability;
• For which he/she is receiving compensation from said Veteran's Administration. A mere ratings decision is not enough to establish this element.

Request a § 37A proceeding

• Complete the Request For §§ 37, 37A Proceeding and Agreement Form 122, there are instructions accompanying this form. Include a certificate stating that the form was served on the Office of Legal Counsel.
   
• Include a petition containing the following information:
  • Employee's employment and education history, including military and vocational training.
  • Evidence of a pre-existing physical impairment, note that you need not include every injury the employee had from infancy forward;
    • Evidence of a pre-existing impairment can be proven through medical documents including, but not limited to: physician office notes, operative reports, discharge summaries, radiographic tests, medical histories, ambulatory reports, and emergency room reports.
  • All medical records pertaining to the subsequent (second) injury.
    • Evidence of treatment of industrial injury can be proven through medical documents including, but not limited to: physician office notes, operative reports, discharge summaries, radiographic tests, medical histories, ambulatory reports, emergency room reports, and independent medical examination reports.
  • Please note that all evidence in support of the petition must be clearly labeled as exhibits and these exhibits must be properly and accurately cited throughout the petition.
     
• A breakdown of the calculation showing how the Insurer determined both the medical and weekly compensation amounts MUST be included.
   
• All DIA documentation that substantiates the reimbursement sought by the insurer. This includes, but is not limited to the following: Employer's First Report of Injury, Agreements to Pay Compensation, Orders to Pay, Notifications of Modifications, Terminations and Denials, Appeals, Wage Schedule, Employee's Claim Form 110 and Lump Sum Agreement (including the second page), and full constructive settlement agreement if an annuity is purchased in the course of settlement.
   
• Evidence of payments made, including indemnity records for both medical and weekly compensation with complete dates of service.
   
• An insurer W-9 form should also be included.
   
• If there is a conference appeal on a medical issue, the petitioner MUST attach the impartial medical report.
   
• All inquiries regarding previous § 37A filings need to be made by filing a Freedom of Information Act form with the claims department. The Trust Fund will not give out this information.

Note: Incomplete petitions will result in the Trust Fund requesting a withdrawal of the petition at Conciliation. Additionally, please be aware that inaccurate and incomplete information will delay the processing of your petition.

Should the parties reach an agreement under § 37A use the Form 123.

Additional Resources

Form 122: Request for Sections 37/37A Proceedings

Form 123: Request for Sections 37/37A Agreement