Bolduc's Case
Bolduc's Case
Opinion of the Court
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 Depart
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 judge found that the 2008 injury was a new injury, not a recurrence of the 2002 injury, and that the employee was therefore entitled to compensation. Liberty Mutual maintained that the successive insurer rule rendered Travelers responsible, as Travelers was on the risk in 2008. See Pilon’s Case, 69 Mass. App. Ct. 167, 169 (2007), and cases cited. The administrative judge determined that Liberty Mutual had “accepted liability for the case as a recurrence . . . attributable to the November 2002 injury” because of its history of payment. The board reversed, concluding as a matter of law that the successive insurer rule governed.
Discussion. 1. Successive insurer rule. The board’s decision may be set aside only if it is arbitrary or capricious, an abuse of discretion, or erroneous as a matter of law. See G. L. c. 152, § 12(2). See also G. L. c. 30A, § 14(7)(a)-(d), (f), (g); Haslam’s Case, 451 Mass. 101, 106 (2008); Wadsworth’s Case, 461 Mass. 675, 679 (2012). The parties are in agreement that there are no factual issues before us.
“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,” Pilon’s Case, supra, so long as the most recent injury contributes to the incapacity to the “slightest extent.”
Travelers maintains that the rule is inapplicable for two interrelated reasons: (1) that the successive insurer rule does not apply because Liberty Mutual accepted the claim by voluntarily paying Bolduc from June, 2008, until the conference in December, 2008, and (2) that Liberty Mutual and the employee agreed that Liberty Mutual was responsible by virtue of its payment of the claim before conference.
That Liberty Mutual initially evaluated the claim as a recurrence claim and paid benefits subject to the limitations on cessation of payment set forth in G. L. c. 152, § 8(2), does not alter the liability of Travelers for the claim under the statute, once Bolduc’s injury was adjudicated a new injury.
Nor did Liberty Mutual’s decision to pay compensation during the time between the initial claim and the December, 2008, conference (when further payment was ordered) constitute a binding agreement between Liberty Mutual and Bolduc that Liberty Mutual was responsible for the injury.
2. Equitable powers of the board. Travelers points out that the procedure under G. L. c. 152, § 15A, for adjudicating disputes between carriers as to liability was not invoked here. From that fact, Travelers argues that the board acted in excess of its powers in crafting an equitable order compelling Travelers to pay. The argument is inapposite in two respects. First, the board did not expressly decide whether the procedures available under § 15A were applicable to these proceedings,
Second, the equitable powers of the board are deeply rooted. “The board is not bound by strict legal precedent or legal
Decision of reviewing board affirmed.
The factual finding that the 2008 injury was a new, compensable injury is supported by the evidence, as is the board’s finding that Travelers suffered no prejudice as a result of the initial handling of the case by Liberty Mutual for the first seven months the case was pending. Neither of these conclusions is contested on appeal.
“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.” Pilon’s Case, 69 Mass. App. Ct. at 169. Here, the administrative judge found that Bolduc’s current incapacity was causally related to both the 2002 and 2008 industrial injuries.
In this case, where causation was at issue, the final determination whether the injury was new or recurring awaited expert testimony and a determination by an administrative judge after hearing. See Carpenter’s Case, 456 Mass. 436, 441 (2010) (where a “causal relation is a matter beyond the common knowledge and experience of the ordinary layman, the proof must rest upon expert medical testimony”), quoting from Buck’s Case, 342 Mass. 766, 769 (1961).
The administrative judge relied on the fact that Liberty Mutual paid benefits for in excess of 200 days before being ordered to do so. The board ruled that the 180-day pay without prejudice period set forth in G. L. c. 152, § 8(1), does not apply to a recurrence claim, and that the 180-day pay without prejudice period expired in 2003 with the initial claim. The board concluded that Liberty Mutual was obligated either to pay on the recurrence claim or to proffer a reasoned basis for failing to do so, but it did not waive its defenses by virtue of payment.
Travelers has not cited, and we have not found, any authority for the proposition that the statutory scheme may be altered by the conduct of the parties in the absence of factors (not present here) such as laches, estoppel, fraud, unclean hands, or some other claim or defense grounded in prejudice. See generally Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 265 (1985).
Travelers was notified in October, 2008, of Bolduc’s claim against it, and both insurers appeared at the December conference, but neither invoked § 15A. Section 15A was raised for the first time in October, 2010, at the outset of the de novo hearing in which both insurers denied liability and contested causation.
General Laws c. 152, § 15A, provides for an expedited hearing when the employee’s entitlement to benefits as well as the responsibility of two or more insurers are in dispute. See The St. Paul Cos. v. TIG Premier Ins. Co., 58 Mass. App. Ct. at 656.
In this respect, it is important to reemphasize that this case does not involve a claim that the handling of the case or the failure to invoke § 15A earlier in the proceedings prejudiced the successor insurer in any respect. See Lincoln, 8 Mass. Workers’ Comp. Rep. at 225.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.