Commonwealth v. Muir (Lawyers Weekly No. 11-146-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1767 Appeals Court COMMONWEALTH vs. EVERTON MUIR. No. 12‑P‑1767. Suffolk. October 18, 2013. ‑ December 18, 2013. Present: Cohen, Meade, & Sullivan, JJ. Motor Vehicle, Leaving scene of accident. Practice, Criminal, Lesser included offense, Instructions to jury. Indictment found and returned in the Superior Court Department on October 6, 2010. The case was tried before Patrick F. Brady, J. Daniel R. Katz for the defendant. Joseph M. Ditkoff, Assistant District Attorney, for the Commonwealth. MEADE, J. The defendant was indicted for leaving the scene of an accident causing death in violation of G. L. c. 90, § 24(2)(a1/2)(2) (subsection 2).[1] After a jury trial, the defendant was convicted of leaving the scene of an accident causing personal injury in violation of G. L. c. 90, § 24(2)(a1/2)(1) (subsection 1).[2] He was given a suspended sentence of six months, with two years of probation. On appeal, the defendant claims it was error for the judge to have instructed the jury on subsection 1 because it is not a lesser included offense of subsection 2, the evidence did not justify a lesser included instruction, and the evidence was insufficient to establish the defendant left the scene of the accident to avoid prosecution or evade apprehension. We affirm. Background. The following was the evidence adduced at trial. On April 1, 2010, at approximately 6:00 A.M., the defendant drove his girlfriend to the Wonderland subway station and dropped her off so she could take the subway to work. After completing this task, the defendant drove home. At approximately the same time that morning, Blanca Moreno’s (the victim) car broke down on Route 1A in Revere. According to the State Police accident reconstructionist, at approximately 6:15 A.M., the victim was running across the northbound lane of Route 1A against a red light when the defendant’s car struck her as she neared the end of the crosswalk. The victim was launched onto the hood and up the windshield, and her elbow broke the glass. After that point of impact, the victim continued in the air and over a guardrail before she landed on the southbound side of Route 1A, eighty-seven feet from the point of collision. The defendant later reported that he swerved but did not apply his brakes before impact. Visibility was low that morning, the defendant was […]
Mello Construction, Inc. v. Division of Capital Asset Management (Lawyers Weekly No. 11-147-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1429 Appeals Court MELLO CONSTRUCTION, INC., vs. DIVISION OF CAPITAL ASSET MANAGEMENT. No. 12‑P‑1429. Bristol. June 4, 2013. ‑ December 18, 2013. Present: Cypher, Graham, & Agnes, JJ. Public Works, General contractor. License. Governmental Immunity. Damages. Practice, Civil, Action in nature of certiorari. Civil action commenced in the Superior Court Department on July 25, 2007. The case was heard by Thomas F. McGuire, Jr., J., on motions for judgment on the pleadings. John J. McNamara for the plaintiff. James A. Sweeney, Assistant Attorney General, for the defendant. GRAHAM, J. The dispositive question presented in this appeal is whether a general contractor may sue the division of capital asset management and maintenance (DCAM) for money damages for a discretionary decision to deny an annual application for certification to bid on public construction projects.[1] We conclude that it may not and affirm a Superior Court judgment dismissing the contractor’s complaint. Background. From 1985 until 2004, Mello Construction, Inc. (Mello), a general contractor specializing in large-scale public construction projects, received annual certificates of eligibility from DCAM.[2] In October, 2004, Mello submitted its annual application for certification. See G. L. c. 149, § 44D(2), as amended by St. 2004, c. 193, § 15. On August 19, 2005, DCAM issued a preliminary determination denying the application based in part on two negative contractor evaluations.[3] See G. L. c. 149, § 44D(4). As permitted by the statute, Mello timely requested reconsideration and submitted additional information and documentation to DCAM, including lengthy rebuttals of the allegedly biased evaluations. See ibid. On October 27, 2005, DCAM, refusing to disregard the negative evaluations, denied Mello’s application for four reasons: (1) failure to achieve a minimum average project rating required for certification; (2) receipt of two failing scores on the Berkley and Andover projects (see note 3, supra); (3) failure to disclose on its application the termination from the Norwood project; and (4) failure to disclose the invoking of a performance bond.[4] Following a hearing in January, 2006, the Attorney General issued a decision on April 6, 2007, affirming the denial of the application.[5] See ibid. In July, 2007, Mello commenced this Superior Court action against DCAM, seeking monetary damages.[6] On December 1, 2009, DCAM filed a motion to have the case proceed pursuant to a writ of certiorari under […]
Doe, Sex Offender Registry Board No. 205614 v. Sex Offender Registry Board (Lawyers Weekly No. 10-195-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11328 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 205614 vs. SEX OFFENDER REGISTRY BOARD. Suffolk. October 7, 2013. ‑ December 11, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Administrative Law, Hearing, Judicial review, Standard of proof, Regulations. Witness, Expert. Evidence, Expert opinion. Civil action commenced in the Superior Court Department on September 1, 2010. The case was heard by Paul E. Troy, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Catherine J. Hinton for the plaintiff. David L. Chenail, Assistant Attorney General, for the defendant. Andrew S. Crouch, Committee for Public Counsel Services, & Elizabeth A. Lunt, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. LENK, J. John Doe, a female, pleaded guilty to several Federal charges arising from her prior management of an escort service, including one count of sex trafficking of children, 18 U.S.C. § 1591 (2006).[1] That conviction is a “like violation” to the Massachusetts offense of living off of or sharing earnings of a minor prostitute, G. L. c. 272, § 4B, an enumerated offense requiring registration as a sex offender. See G. L. c. 6, § 178C. A hearing examiner of the Sex Offender Registry Board (SORB) determined after a hearing that Doe presented a low risk of reoffense and attendant degree of dangerousness, and classified her as a level one sex offender. Doe appealed, claiming both that it was arbitrary and capricious for the hearing examiner not to have evaluated proffered authoritative evidence on recidivism in females, and that it was an abuse of discretion to have denied her motion for funds for an expert witness to testify on the subject. We conclude that it was arbitrary and capricious for SORB to classify Doe’s risk of reoffense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism, and that, in the circumstances, the hearing examiner abused his discretion by denying the motion for funds for an expert witness. Therefore, we remand the matter to SORB for further proceedings. 1. Statutory and regulatory framework. The requirement to register as a sex offender is governed by a set of […]
Pfeiffer v. Commonwealth (Lawyers Weekly No. 10-196-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11521 MELISSA PFEIFFER vs. COMMONWEALTH. December 11, 2013. Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Indictment. Melissa Pfeiffer appeals from a judgment of a single justice of this court denying, without a hearing, her petition for relief under G. L. c. 211, § 3. We affirm. Pfeiffer has been indicted for various offenses, including murder in the second degree. She moved to dismiss the murder indictment on the ground, among others, that the proceedings before the grand jury were impaired because the grand jury were not instructed as to the elements of the offense.[1] A judge in the Superior Court denied the motion. Pfeiffer’s G. L. c. 211, § 3, petition followed. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires an appellant in these circumstances to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Pfeiffer has not carried her burden under the rule. It is well established that the denial of a motion to dismiss an indictment cannot be appealed as a matter of right until after trial and that a petition for extraordinary relief under G. L. c. 211, § 3, cannot be used to circumvent this rule. E.g., Owens v. Commonwealth, 465 Mass. 1010 (2013), and cases cited. We have recognized a narrow exception in cases where the motion to dismiss raises a double jeopardy claim of substantial merit. See Neverson v. Commonwealth, 406 Mass. 174, 175-176 (1989). But we have routinely declined to extend the exception to claims other than double jeopardy. Fitzpatrick v. Commonwealth, 453 Mass. 1014, 1015 n.2 (2009), and cases cited. Pfeiffer’s claim that the indictment was defective, unlike a double jeopardy claim, does not implicate a right not to be tried at all. Cf. Garden v. Commonwealth, 460 Mass. 1018, 1019 (2011). Moreover, her claim is not meaningfully different from other types of claimed defects in grand jury proceedings, which are regularly (and effectively) reviewed in direct appeals following convictions. See, e.g., Commonwealth v. McCarthy, 385 Mass. 160 (1982) (reversing conviction and dismissing indictment where insufficient evidence presented to grand jury); Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31 (2000) (same); Commonwealth v. Carr, 464 Mass. 855, 868-869 […]
Madison v. Commonwealth (Lawyers Weekly No. 10-197-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11539 LINANEL BROWN MADISON vs. COMMONWEALTH. December 11, 2013. Supreme Judicial Court, Superintendence of inferior courts. The petitioner, Linanel Brown Madison, appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. We affirm. Brown Madison was indicted in April, 2013, on several charges, including murder, unlawful possession of a firearm, and attempted armed robbery. Shortly thereafter, the Commonwealth filed a motion in the Superior Court for a protective order to limit the discovery of, among other things, witnesses’ identifying information, including names and addresses. A judge allowed the motion in part, ordering that witnesses’ addresses and telephone numbers not be disclosed to Brown Madison or his counsel. To the extent that the Commonwealth also sought to protect the witnesses’ names from Brown Madison, the judge denied the motion. Brown Madison thereafter filed his G. L. c. 211, § 3, petition in the county court, arguing that the order deprives him of several State and Federal constitutional rights. In particular, he argued that the order will limit his ability to prepare a defense and infringes on his right to receive effective assistance of counsel. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that “review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” S.J.C. Rule 2:21 (2). Brown Madison has not made such a showing. He suggests the ways in which he believes that his constitutional rights will be violated if the protective order remains in place, but as to why review of the order cannot adequately be obtained in a direct appeal he argues only that “he will be irremediably and irreparably deprived of his” constitutional rights, and that “[i]f interlocutory review is not granted, the constitutional deprivation will perpetuate without remedy.” He does not elaborate on the point and has not, in short, presented any reason why the discovery order cannot be adequately reviewed in an appeal from any adverse judgment. See Deming v. Commonwealth, 438 Mass. 1007 (2002), citing Carr v. Howard, 426 Mass. 514, 517 n.3 (1998) (discovery disputes generally not appropriate for review under G. L. c. 211, § 3). See also Ray v. Commonwealth, 447 Mass. 1008, 1008-1009 (2006), […]
Beverly Port Marina, Inc. v. Commissioner of the Department of Environmental Protection, et al. (Lawyers Weekly No. 11-145-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑2010 Appeals Court BEVERLY PORT MARINA, INC. vs. COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[1] No. 12‑P‑2010. Essex. September 12, 2013. ‑ December 11, 2013. Present: Green, Grainger, & Fecteau, JJ. Department of Environmental Protection. Administrative Law, Agency’s interpretation of regulation, Regulations. Regulation. Real Property, Littoral property, License. License. Civil actions commenced in the Superior Court Department on July 22 and November 7, 2011. After consolidation, the case was heard by David A. Lowy, J., on motions for judgment on the pleadings. Adam J. Brodsky for the plaintiff. Louis M. Dundin, Assistant Attorney General, for Department of Environmental Protection. Richard A. Nylen, Jr., for city of Beverly. GREEN, J. Under the regulations governing issuance of licenses under G. L. c. 91 for projects on filled tidelands, a license may not issue for a project proposed in a “designated port area” (DPA) if a proposal for a “competing project” submitted during the public comment period on the license application would promote water-dependent industrial uses of the project site to a greater extent than the project proposed in the license application. See 310 Code Mass. Regs. § 9.36(5)(a) (1994). During review by the Department of Environmental Protection (DEP) of an application by the city of Beverly (city) for licenses authorizing, inter alia, construction and operation of a restaurant on a waterfront site, the plaintiff, Beverly Port Marina, Inc. (BPM), submitted a proposal to, inter alia, build and operate a boatyard on the site instead. A DEP hearing officer (presiding officer) concluded that BPM’s submission failed to demonstrate that its proposal was feasible, and recommended issuance of the licenses, with conditions, for the city’s proposed project. The DEP commissioner adopted the recommended decision, and BPM appealed the decision to the Superior Court, where a judge affirmed the decision on cross motions for judgment on the pleadings. We conclude that BPM’s competing proposal adequately satisfied the criteria established by the applicable regulations, and we vacate the judgment. Background. The site at the center of the controversy among the parties is a parcel owned by the city known as “Glover’s Wharf,” located along the Beverly waterfront. The site is at the westernmost end of a DPA established in 1978 under the Massachusetts Coastal Zone Management Plan. See 301 Code Mass. Regs. […]
Categories: News Tags: 1114513, Beverly, Commissioner, department, Environmental, Inc., Lawyers, Marina, Port, Protection, Weekly
Commonwealth v. Saulnier (Lawyers Weekly No. 11-144-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑931 Appeals Court COMMONWEALTH vs. DAVID J. SAULNIER. No. 12‑P‑931. Middlesex. September 23, 2013. ‑ December 6, 2013. Present: Meade, Milkey, & Hanlon, JJ. Motor Vehicle, Operating under the influence. Intoxication. Evidence, Intoxication, Opinion. Witness, Police officer. Practice, Criminal, Witness, Waiver of trial by jury, Bifurcated trial. Waiver. Complaint received and sworn to in the Waltham Division of the District Court Department on August 24, 2010. The case was heard by Tobin N. Harvey, J. Thomas J. Chirokas for the defendant. Moire V. Dobransky, Assistant District Attorney, for the Commonwealth. HANLON, J. After a jury-waived trial in the District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, fourth offense.[1] On appeal, he argues that the trial judge permitted a police officer to give improper opinion testimony on the ultimate issue, and that his conviction should be vacated because he did not waive his right to a jury trial on the subsequent offense portion of the trial. For the reasons that follow, we affirm. Background. The judge heard the following facts. On August 23, 2010, at approximately 7 P.M., the defendant was involved in a motor vehicle accident on Main Street in Waltham. A witness testified that she saw the defendant drive a vehicle away from Gordon’s Liquor Store and then travel diagonally across two lanes of traffic and into her lane, where it “smashed into the driver’s side headlight area of [her] car.” Afterwards, her car was inoperable. The witness’s boyfriend, who had been driving her car, called the police; the witness saw the defendant “rocking back and forth,” saying, “I’m so fucked, I’m so fucked.” Waltham police Officer Anthony Scichilone responded to the scene and observed the witness’s motor vehicle stopped in traffic. He spoke with the defendant, who told him that the witness’s car had struck him; however, according to the officer, the witness’s car was in the proper lane. During the conversation, the officer noticed that the defendant had “a moderate odor of alcohol coming from his breath, his eyes were bloodshot and glassy, he had slurred speech, and to me he looked impaired. . . . He was unsteady on his feet and when he approached the sidewalk he stumbled off the sidewalk.” […]
Olmstead v. Department of Telecommunications and Cable, et al. (Lawyers Weekly No. 10-194-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11240 BRIAN MICHAEL OLMSTEAD vs. DEPARTMENT OF TELECOMMUNICATIONS AND CABLE & others.[1] Suffolk. September 9, 2013. ‑ December 4, 2013. Present: Ireland, C.J., Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Supreme Judicial Court, Appeal from order of single justice. Telecommunications. Public Utilities, Telecommunications, Judicial review. Administrative Law, Judicial review, Agency’s interpretation of statute. Due Process of Law, Appeal. Statute, Construction. Practice, Civil, Dismissal of appeal, Moot case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 15, 2011. A motion to dismiss was considered by Spina, J., and a motion for reconsideration was considered by him. Brian Michael Olmstead, pro se. Suleyken D. Walker, Assistant Attorney General, for the Department of Telecommunications and Cable. Alexander W. Moore, for Verizon New England, Inc., & another, was present but did not argue. CORDY, J. In this case, we are asked to decide if the single justice erred, first, in concluding that G. L. c. 25, § 5, governs judicial review of a final order by the Department of Telecommunications and Cable regarding a consumer telephone service complaint and, second, in dismissing the plaintiff’s complaint because it failed to comply with the timely filing requirements of G. L. c. 25, § 5. We affirm the single justice’s ruling that G. L. c. 25, § 5, applies to such appeals. However, because the plaintiff was afforded a renewed opportunity to pursue an appropriate and timely appeal under G. L. c. 25, § 5, and has chosen to do so, we dismiss this case as moot. 1. Background. a. The plaintiff’s initial claims. This case arises from a consumer dispute regarding billing practices and quality of telephone, cable television, and Internet service provided by Verizon New England, Inc., to the plaintiff, a residential customer. In December, 2009, the plaintiff filed an appeal and a claim for an adjudicatory hearing with the department, alleging that Verizon New England had violated the department’s Rules and Practices Relating to Telephone Service to Residential Customers, and had otherwise engaged in unfair and deceptive business practices. The matter was assigned to a hearing officer, and after a tortuous procedural history, the claim was dismissed as moot because, in the course of the proceedings, the plaintiff’s customer relationship with Verizon New England had been terminated due to continuous nonpayment. The plaintiff appealed the hearing officer’s decision to the Commissioner of […]
Categories: News Tags: 1019413, Cable, department, Lawyers, Olmstead, Telecommunications, Weekly
Bailey v. Astra Tech, Inc., et al. v. Stockard, et al. (Lawyers Weekly No. 11-142-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑478 Appeals Court DOUGLAS G. BAILEY[1] vs. ASTRA TECH, INC., & others[2]; ROBERT G. STOCKARD,[3] & others,[4] third-party defendants. Suffolk. October 10, 2012. ‑ December 4, 2013. Present: Kafker, Cohen, & Trainor, JJ. Agency, Agent’s contract, Scope of authority or employment. Contract, Settlement agreement, Construction of contract, Contract clause, Merger. Escrow. Civil action commenced in the Superior Court Department on January 13, 2009. A motion for approval of a settlement agreement was heard by Judith Fabricant, J., and entry of a separate and final judgment was ordered by her. Steven M. Cowley for the plaintiff. Harvey E. Bines for CID Equity Capital VIII, LP, & others. Richard D. Batchelder, Jr., for Astra Tech, Inc. TRAINOR, J. Douglas G. Bailey, as shareholders’ agent (shareholders’ agent) of the shareholders of Atlantis Components, Inc. (Atlantis), appeals from a judgment of the Superior Court that (1) approved the settlement between Astra Tech, Inc. (Astra Tech), and a group of former shareholders of Atlantis (settling shareholders), and (2) ordered distribution of the settling shareholders’ proportional share of an escrow fund. The only issue before us is whether the settling shareholders had the power to negotiate this settlement with Astra Tech. Claiming that they do not have this authority, the shareholders’ agent makes three arguments: first, that there is no procedural mechanism that allows the settling shareholders to settle with Astra Tech; second, that under the merger agreement, he has the exclusive right to negotiate with Astra Tech; and third, that his agency is irrevocable because he has a power coupled with an interest. We reject these arguments and affirm the judgment of the Superior Court. Background. In October of 2007, Astra Tech acquired Atlantis by a stock purchase merger for $ 71 million.[5] As is common, the parties placed a portion ($ 6.3 million) of the purchase price into an escrow fund, which would be disbursed to the former Atlantis shareholders on a pro rata basis on December 31, 2008, the release date. The escrow fund’s purpose was to indemnify Astra Tech if it paid any claims asserted against Atlantis after the closing date but before the release date. The merger agreement designated a shareholders’ agent to serve as the representative of the former Atlantis shareholders.[6] It was the shareholders’ agent’s […]
Bolduc’s Case (Lawyers Weekly No. 11-143-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1764 Appeals Court GARY BOLDUC’S CASE. No. 12‑P‑1764. Suffolk. September 17, 2013. ‑ December 4, 2013. Present: Hanlon, Brown, & Sullivan, JJ. Workers’ Compensation Act, Previous work‑related injury, Subsequent injury, What insurer liable. Appeal from a decision of the Industrial Accident Reviewing Board. John J. Canniff for Travelers Insurance Co. Margo A. Sutton for Liberty Mutual Insurance Co. SULLIVAN, J. This is a dispute between two workers’ compensation insurers as to which of them is liable for payment of compensation benefits to an employee whose entitlement to benefits is no longer in question. Travelers Insurance Co. (Travelers) appeals from the decision of the board of review of the Department of Industrial Accidents (board), holding Travelers liable for compensation payments. Travelers contends that the board’s decision is contrary to law and exceeded the board’s authority. See G. L. c. 30A, § 14; G. L. c. 152, § 12(2). We affirm. Background. Gary Bolduc suffered a back injury in November of 2002 which resulted in a prolonged absence from work and a claim for compensation. The employer’s workers’ compensation insurer at that time, Liberty Mutual Insurance Co. (Liberty Mutual), paid the claim. Bolduc returned to work for the same employer. On or about May 27, 2008, Bolduc injured his back at work once again. He stopped working on June 5, 2008. Travelers was the insurer on the risk at the time of the 2008 injury. The employer notified Liberty Mutual of the May 27, 2008, injury, but did not notify Travelers at that time. Treating the claim as a recurrence of the 2002 injury, Liberty Mutual resumed payment of benefits retroactive to June 6, 2008, and continued to pay benefits through the filing and resolution of Bolduc’s claim for an increased average weekly compensation rate. See G. L. c. 152, §§ 34, 35B. On October 17, 2008, the employee filed another claim for the same injury against Liberty Mutual seeking surgical benefits, as well as an initial claim against Travelers for medical and weekly payments. After a conference held on December 23, 2008, an administrative judge ordered Liberty Mutual to continue paying benefits, and denied the claim as to Travelers. Liberty Mutual appealed, and the administrative judge set the matter for a de novo hearing among all three parties. After the hearing, the administrative […]