Second injury claim, MGLc. 152 § 37

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

Documenting a § 37 Claim

The Insurer must prove:

  • The employee has a known physical impairment which is due to any previous accident, disease, or congenital condition which;
  • Is, or is likely to be, a hindrance or obstacle to his/her employment;
  • The employee, in the course of and arising out of his employment, receives a personal injury for which compensation is required by M.G.L. c. 152;
  • The subsequent personal injury 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;
  • Employer knowledge of the pre-existing physical impairment.

It is important to keep in mind that EACH of these 5 elements must be proven for reimbursement purposes. The Trust Fund has the right to defend all claims against the Fund and therefore may contest any reimbursement amount requested by an insurer.

Request A § 37 Proceeding

  • Complete the Form 122, there are instructions accompanying this form.
  • Include a certificate stating that the Form 122 was served on the Office of Legal Counsel.
  • Include a petition containing all of 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;
    • Evidence of the Employer's knowledge of a pre-existing physical impairment due to a previous accident, disease or congenital condition.
      • PRE - 12/23/1991 the employer's knowledge can be established by medical records which existed prior to the date of the second injury;
      • POST - 12/23/1991 employer's knowledge is shown by an employer affidavit, employee affidavit, physical exam or employment application;
    • Evidence that the pre-existing physical impairment was, or was likely to be, a hindrance or obstacle to employment. This can be shown through evidence of missed time from work, documented job modifications or accommodations;
    • 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;
    • Evidence of substantially greater must be proven by an authoritative medical opinion as to the combination of the prior injury coupled with the second injury is substantially greater than the second injury alone;
    • Please note: 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, Orders to Pay, Notifications of Modification, Termination and Denial, Appeals, Wage Schedule, Employee's Claim, 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. The 104th week will be calculated based upon the earliest weekly compensation date, and no credit will be given to indemnity entries without 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 MGL c. § 37 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 MGL c. 152 § 37 use the Form 123.

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