Comeau’s Case (Lawyers Weekly No. 11-053-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-134 Appeals Court JEFFREY COMEAU’S CASE. No. 16-P-134. Suffolk. January 13, 2017. – May 8, 2017. Present: Grainger, Wolohojian, & Neyman, JJ. Workers’ Compensation Act, Interest. Statute, Construction. Massachusetts Insurers Insolvency Fund. Words, “Claim.” 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. 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. Background.[1] 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 […]