Pilon Case
Pilon Case
Opinion of the Court
The Massachusetts Insurers Insolvency Fund (Insolvency Fund) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) affirming the decision of an administrative judge that the Insolvency Fund is responsible for payment of workers’ compensation benefits to William Pilón, Jr. The Insolvency Fund asserts that the adminis
1. Pilon’s employment and injury. There is no dispute that on June 3, 1998, while employed by R.S. Guerette Corporation (Guerette), Pilón sustained carpal tunnel injury and nerve damage to his arms and hands due to constant use of vibrating demolition equipment.
On November 1, 1998, Pilón began employment at Specialty Contracting Services, Inc. (Specialty). In the course of that employment, he again experienced pain and numbness in his elbows, wrists, and hands. Although one-half of Pilon’s work at Specialty was in the office, he still used vibrating demolition equipment. In July, 1999, the pain made a “sudden recurrence” and worsened to a point that on December 28, 2000, Pilón could no longer write or drive. He had severe pain and some numbness in areas around his right elbow, hand, and the web area between his right thumb and index finger. He had similar, though less severe, pain on the left side. Pilón ceased working for Specialty on December 28, 2000.
At that time, AIM Mutual Insurance Company (AIM) was Specialty’s insurer. From the beginning of Pilon’s employment with Specialty until November 13, 2000, when AIM became Specialty’s insurer, Specialty did not have workers’ compensation insurance. Consequently, the Workers’ Compensation Trust Fund (Trust Fund)
2. Pilón’s claims and the insurer liable for his injury. Where an employee suffers two or more compensable injuries that are causally related to a resulting incapacity, only one insurer is chargeable for the payment of compensation for the same disability. The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury that bears causal relation to the disability claimed must pay the entire compensation. See Fitzpatrick’s Case, 331 Mass. 298, 300 (1954); Casey’s Case, 348 Mass. 572, 574 (1965); Zerofski’s Case, 385 Mass. 590, 592 (1982). The subsequent injury need not be a significant contributing cause to the incapacity. So long as it is to the “slightest extent” a contributing cause, the insurer at the time of the recent injury will be held liable to cover the entire incapacity. See Rock’s Case, 323 Mass. 428, 429 (1948). The determination whether there was a subsequent injury and whether it had causal connection to the ensuing incapacity is essentially a question of fact, Costa’s Case, 333 Mass. 286, 288 (1955); see also Zerofski’s Case, 385 Mass. at 594, on which expert medical opinion is required. See Casey’s Case, supra.
The Insolvency Fund maintains that the administrative judge erred in finding that Pilón’s compensable incapacity was due only to the injury sustained on June 3, 1998, a determination that was upheld summarily by the board. Neither the board nor the administrative judge erred. Findings of fact, assessments of credibility, and determinations of the weight to be given the evidence are the exclusive function of the administrative judge. See Chapman’s Case, 321 Mass. 705, 707 (1947). We will not disturb the judge’s findings that are “reasonably deduced from the evidence and the rational inferences of which it was susceptible.” Ibid. On the evidence before him, the administrative judge did not err in concluding that Pilón sustained but a single compensable injury, which occurred on June 3, 1998, when he was employed by Guerette, and that Pilón’s subsequent complaints were but a continuing manifestation of his original injury. Nor did the board err in summarily affirming that determination. See G. L. c. 152, § 12(2); Scheffler’s Case, 419 Mass. 251, 257-258 (1994).
The closest a medical expert came to describing a new injury was a 2001 progress note of Dr. Daniel Gottlieb which stated that Pilón’s “arm problems are work related either by causation or exacerbation.”
3. The reimbursement order. Pilón made an initial claim for benefits on June 13, 2001, alleging that he was injured while employed by Specialty during the period that Specialty was insured by AIM. He then filed a second claim for benefits on August 1, 2001, alleging an earlier work-related injury while employed by Guerette. Prior to final resolution of Pilón’s claim for benefits and a determination of the employer and insurer responsible, an administrative judge issued a conference order that required AIM to pay temporary total and temporary partial incapacity benefits to Pilón. See G. L. c. 152, § 10A.
AIM argues that it should be reimbursed for temporary incapacity benefits that it paid to Pilón because it appealed the conference order and the obligation was found ultimately to be that of Pilón’s prior employer, Guerette, and not of AIM. A prohibition on its reimbursement, AIM argues, would give final effect to that informal conference order and run contrary to the structure of the workers’ compensation system, which is to provide an informal and expedited mechanism for the award of benefits. See G. L. c. 152, § 10A; 452 Code Mass. Regs. §§ 1.10 et seq. (1993).
The Insolvency Fund is not an insurer. See Barrett v. Massachusetts Insurers Insolvency Fund, 412 Mass. 774, 776 (1992). Rather, it is a statutorily mandated nonprofit association created to provide limited protection to insureds and claimants in the event of insolvency of an insurer. See ibid.; G. L. c. 175D, § 5. The statutory benefits provided by the Insolvency Fund are not to be extended beyond those expressly provided for in G. L. c. 175D. See Ferrari v. Toto, 9 Mass. App. Ct. 483, 486 (1980), S.C., 383 Mass. 36 (1981). The statutory limitation on the Insolvency Fund’s obligation minimizes the financial burden on the insurance-buying public and conserves the Insolvency Fund’s limited resources. “The [Insolvency] Fund’s obligations and expenses are assessed to a broad range of insurers . . . [who] recoup the amounts which they pay into the Insolvency Fund by increasing their rates and premiums.” Clark Equip. Co. v. Massachusetts Insurers Insolvency Fund, 423 Mass. 165, 167 (1996).
Subject to the limitations of G. L. c. 175D, the Insolvency Fund is obligated to pay “covered claims” against an insolvent insurer. See G. L. c. 175D, § 5(1)(a); Massachusetts Insurers Insolvency Fund v. Ladd, 39 Mass. App. Ct. 553, 555 (1995). All other claims not provided for in G. L. c. 175D must be denied. See G. L. c. 175D, § 5(1 )(d). An express exclusion from the definition of “covered claim,” and hence from the obligation of the Insolvency Fund, is any amount for “the benefit” of an insurer. See G. L. c. 175D, § 1(2); Ferrari v. Toto, 9 Mass. App. Ct. at 486. In consequence, the Insolvency Fund is precluded from reimbursing AIM, an insurer, for temporary incapacity benefits AIM paid to Pilón.
We reverse that portion of the board’s decision requiring the Insolvency Fund to reimburse AIM or Pilón for temporary incapacity benefits. In all other respects, the decision of the board is affirmed.
So ordered.
Although Pilón reported feeling pain as early as his second week at Guerette, he reported an injury on June 3, 1998, when the pain intensified.
When Credit General later became insolvent, the Insolvency Fund stepped in its place to respond to Pilon’s claim pursuant to G. L. c. 175D, § 5.
See note 8, infra. The Trust Fund is not a party to this appeal.
The administrative judge, sua sponte, allowed additional medical evidence pursuant to G. L. c. 152, § 11A(2). He believed that the § 11A report warranted supplementation where significant periods of the disability before and after the impartial physician’s examination were in question.
The Insolvency Fund correctly points out that Zerofski’s Case, 385 Mass. at 594-595, establishes that no specific incident causing the harm is required to find a new injury: an “identifiable condition that is not common and necessary to all or a great many occupations.” However, the administrative judge stated no requirement to the contrary and recognized that Pilón’s pain had been ongoing, starting as early as his second week of employment at Guerette. Viewed in these terms, the issue is not what caused a subsequent injury but whether there was a new injury at all. The administrative judge found little expert medical opinion to support a causal connection between Pilón’s disability and a new injury, and his finding of a single injury is not plainly wrong.
Neither party chose to cross-examine Dr. Skoff.
Both AIM and Pilón appealed the conference order.
PiIon filed a third claim for benefits, alleging that he sustained an injury on or before November 12, 2000, while employed by Specialty and prior to Specialty being insured by AIM. As to this claim, Specialty was uninsured, and the Trust Fund would be liable for benefits.
Pilon’s claim for temporary incapacity benefits is not an “unpaid claim,” because Pilón has already received payment for those benefits from AIM under the conference order. See G. L. c. 175D, § 1(2); Ferrari v. Toto, 9 Mass. App. Ct. at 486. Pilón has no further entitlement to such benefits and no right to double recovery.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.