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Appeals Court of Massachusetts, Suffolk

May 8, 2017


          Heard: January 13, 2017.

         Appeal from a decision of the Industrial Accident Reviewing Board.

          Michael Brangwynne & John G. Neylon, Sr., for the employee. Paul M. Moretti for Massachusetts Insurance Insolvency Fund.

          Margo A. Sutton for Wasau Insurance Company.

          Present: Grainger, Wolohojian, & Neyman, JJ.

          WOLOHOJIAN, J.

         At issue is the meaning of the word "claim" as it appears in G. L. c. 152, § 50, which requires that interest be assessed on unpaid workers' compensation claims from "the date of the receipt of the notice of the claim by the department." The reviewing board (board) of the Department of Industrial Accidents (department) concluded that, in the circumstances of this case, interest was to run from the date the department received notice of the claim ultimately resulting in the order awarding benefits. The board rejected the employee's argument that interest should run instead from the filing date of an earlier, similar claim that had been terminated by agreement, pursuant to G. L. c. 152, § 19, prior to an adjudicated conclusion or an award of benefits. We affirm.


         The case has an extensive history, most of which is not pertinent to this appeal and therefore need not be set out here. Of importance for our purposes is the following. The employee was injured in 1993 while working. Liberty Mutual Insurance Company (Liberty), as successor to Wausau Insurance Company (the insurer on the date of injury), accepted liability and paid the employee benefits for total incapacity pursuant to G. L. c. 152, § 34, until he returned to work. Liberty then paid the employee partial incapacity benefits pursuant to G. L. c. 152, § 35, benefits until March 10, 1995. The employee continued to work until October 2, 1995, when he suffered a second injury. The insurer for this second injury is now the Massachusetts Insurance Insolvency Fund (MIIF), which assumed the risk when Eastern Casualty Insurance Company, the insurer at the time of the second injury, became insolvent.[2] See G. L. c. 176D, § 5. On December 26, 1995, on the advice of his treating orthopedic physician, the employee stopped work and has not returned to work since.

         The employee filed a claim for the second injury on April 1, 1996, and MIIF filed a denial of that claim on April 10, 1996.[3] Shortly thereafter, in May, 1996, Liberty filed a complaint for recoupment of almost $35, 000 it had paid with respect to the first injury, alleging that the employee earned more than his average weekly wage while receiving the G. L. c. 152, § 35, benefits.

         The employee then moved to join two claims against Liberty for the first injury, one for G. L. c. 152, § 34, benefits from January 2, 1996, and the other for G. L. c. 152, § 36, benefits. Liberty in turn moved to join MIIF as the insurer for the second injury. After a conference on the motions, the complaint for recoupment, and the employee's claims, an administrative judge denied Liberty's request for recoupment, allowed the motion to join MIIF, and denied the employee's claims, without adjudicating MIIF's liability. Liberty and the employee both appealed.

         Over the next eleven years, although a number of hearings were scheduled, for reasons unknown they did not take place and the litigation languished. On July 10, 2008, the parties entered into two agreements pursuant to G. L. c. 152, § 19; one agreement was between the employee and Wausau (now Liberty), and the other was between Wausau and Eastern (now MIIF). In both agreements, Wausau agreed to withdraw without prejudice its appeal of the order denying recoupment. In the agreement between the employee and Wausau, the employee agreed to withdraw his appeal of the conference order denying disability, reserving the right to raise a disability claim in the future. The employee also stipulated to an overpayment by Wausau of almost $35, 000. That said, Wausau agreed not to pursue the employee for the overpayment unless the employee filed a "future claim for disability and that claim is resolved." In the agreement between Wausau and Eastern, Eastern, without agreeing to liability and without prejudice, agreed that it had been joined to the litigation. The § 19 agreements made no mention of interest or the date from which it would accrue in the event the employee ever received an order for unpaid benefits. In short, the effect of the § 19 agreements, which were filed with the department and approved by the administrative judge, was to terminate the pending proceedings without final adjudication and without prejudice in the event the employee again filed a claim.

         The employee decided to do just that. He first filed claims again in 2008, but withdrew them in 2009. He refiled the claims in 2009, and then again withdrew them.[4] The employee's present claims were filed on January 25, 2010, when he filed an "Employee's Claim" Form 110 with the department, seeking §§ 34 and 35 benefits from April 1, 1996, to the present. Ultimately, through a series of rulings that are not at issue here, MIFF was ordered to pay the employee G. L. c. 152, § 34A, benefits for permanent and total incapacity from April 1, 1996 (the date on which the employee first filed a claim relating to the second injury) to the present and continuing.

         Although the board affirmed the administrative judge's award of benefits from April 1, 1996, forward, the board assessed interest under G. L. c. 152, § 50, only from January 25, 2010, the filing date of the employee's most recent claim. On appeal, the employee argues that he should have been awarded interest from December 17, 1996 ...

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