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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
                                                                    2


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


     1
       Our recitation of the factual background is drawn from the
decision of the board, certain aspects of which we cannot
independently verify because the employee did not include the
pertinent documents in the record appendix. For example, the
appendix does not contain copies of any of the pre-2010 notices
of claim.
                                                                   3


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



     2
       As a convenient shorthand, we refer to both Wausau and
Liberty as Liberty, and to Eastern and MIIF as MIIF.
     3
       This notice of claim is not in the record appendix, see
note 1, supra.
                                                                    4


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
                                                                    5


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 (the date the department


     4
       The record appendix does not reveal the reason for this
pattern of events, but the insurers contend that -- especially
when viewed against the earlier denial of the employee's claim
of disability -– it reflects forum shopping. We need not, and
do not, determine what motivated the employee’s actions. It is
enough to note that he sought on multiple occasions to start the
litigation afresh and then changed his mind, withdrawing his
claims.
                                                                   6


functionally received notice of his claim for the second

injury).5

     Discussion.   We must decide whether the board acted

arbitrarily or capriciously, committed an abuse of its

discretion, or made an error of law when it determined that the

word "claim," as used in G. L. c 152, § 50, refers to the formal

filing that invokes the adjudicatory process that ultimately

leads to an award of benefits.   See G. L. c. 152, § 12(2); G. L.

c. 30A, § 14(7).   See also Robinson's Case, 416 Mass. 454, 455-

457 (1993); Haslam's Case, 451 Mass. 101, 106 (2008).    If the

term is ambiguous, we defer to the board's interpretation of it;

if the term is unambiguous, we do not.   See Kszepka's Case, 408

Mass. 843, 846-847 (1990); McCarty's Case, 445 Mass. 361, 367

(2005).

     We begin with the language of the statute itself, which

provides:

     "Whenever payments of any kind are not made within sixty
     days of being claimed by an employee, dependent or other
     party, and an order or decision requires that such payments
     be made, interest at the rate of ten percent per annum of
     all sums due from the date of the receipt of the notice of
     the claim by the department to the date of payment shall be
     required by such order or decision. Whenever such sums

     5
       It bears noting that the employee's position in this
appeal appears to be different from the position he took before
the board. There, he did not challenge the administrative
judge's interest award, which did not include interest for the
period running from July 10, 2008 (the date of the § 19
agreements) to January 25, 2010 (the filing date of the current
claim).
                                                                   7


    include weekly payments, interest shall be computed on each
    unpaid weekly payment."

G. L. c. 152, § 50, as amended through St. 1991, c. 398, § 77.

The statute imposes interest if an order or decision requires

that unpaid benefits be paid; absent an order or decision

awarding unpaid benefits, it does not apply.   In other words, an

employee is entitled to interest under § 50 if an adjudicatory

body awards unpaid benefits.   The employee is not entitled to

interest simply because he filed a notice of claim; that act

merely supplies the date from which interest will be calculated

in the event an award of unpaid benefits is ultimately made in

the employee's favor.   Thus, in this case, the employee was not

entitled to interest under § 50 until the order awarding unpaid

benefits on his January 25, 2010, notice of claim.   Before that

point, although there had been several notices of claim, none

had been adjudicated to resolution, let alone in the employee's

favor.

    What remains is the question whether interest is to be

calculated from the date of the filing of the claim that led to

the favorable award, or whether we should reach back to the date

of an earlier, unadjudicated claim for that purpose.   In this

regard, we note that the statute repeatedly uses the definite

article "the" in the phrase "from the date of the receipt of the

notice of the claim by the department" (emphasis added).    It
                                                                     8


also uses the singular form of "notice" and "claim."    It is

clear that the language refers to a single notice of claim filed

at a single point in time.   The fact that the phrase appears in

the same sentence as the requirement of an order awarding unpaid

benefits leads to the natural conclusion that the notice of

claim to which the statute refers is the one underlying the

order awarding unpaid benefits.     To uncouple the order from the

claim underlying it would, in our view, run counter to the

statute's language and structure.    To the extent that there is

any ambiguity in the language of the statute (and we do not

suggest that there is), we would defer (as we noted above) to

the board's interpretation of it.

    Although not dispositive, we note that the board's

interpretation and application of G. L. c. 152, § 50, in this

case is consistent with its decisions in other cases.     See

Charles v. Boston Family Shelter, 11 Mass. Workers' Comp. Rep.

203, 205 (1997) (interest will not accrue retroactively where

employee made no effort to pursue it during earlier claim);

Prendergast v. Bay State Volkswagen, 18 Mass. Workers' Comp.

Rep. 166, 170 (2004) ("[T]he plain language of § 50 . . .

provides for payment of interest only from the date the

department received the employee's claim, not from the date of

the commencement of the underlying entitlement upon which

interest is payable"); McEneaney v. Modern Continental Constr.,
                                                                      9


Mass. Dept. of Industrial Accs. Reviewing Bd. No. 021002-01

(October 16, 2009) ("[W]e conclude the word 'claim' in the

[§ 51A] is best interpreted in the general sense, meaning the

vehicle by which a controversy is brought before the

adjudicatory arm of the department [via form 110]").   Compare

Keehnle v. Eagle Publishing Co., 9 Mass. Workers' Comp. Rep.

737, 739-740 (1995) (§ 50 interest can apply retroactively to

earlier "mature" § 36 claim [unlike to awards under other

sections of act] because § 36 is separate and distinct claim of

different nature).

    We recognize that "[t]he work[ers'] compensation act is to

be construed broadly, rather than narrowly, in the light of its

purpose and, so far as reasonably may be, to promote the

accomplishment of its beneficent design."   McCarty's Case, 445

Mass. at 364, quoting from Taylor's Case, 44 Mass. App. Ct. 495,

499 (1998).   In this connection, we are sensitive to the fact

that the employee made his initial claim on April 1, 1996, and

that he has been deprived of his benefits for many years.    Had

he not terminated his 1996 claim, and had it resulted in a

favorable award, he would have received interest from the date

of the 1996 filing.   But, in fact, his 1996 claim for benefits

was denied after conference, and he thereafter agreed to

terminate it.   That claim never led to an order awarding unpaid

benefits, and thus § 50 never applied to the 1996 claim.     In any
                                                                   10


event, the language of the statute does not support the idea

that interest should accrue from the filing date of an earlier

unresolved claim.   A statute's "words must be given their plain

and ordinary meaning according to the approved usage of language

. . . [and] the language of the statute is not to be enlarged or

limited by construction unless its object and plain meaning

require it."   Ibid., quoting from Taylor's Case, supra.

     For these reasons, we affirm the decision of the board.6,7

                                    Decision of reviewing
                                      board affirmed.




     6
       MIIF has cross-appealed, arguing that the administrative
judge impermissibly considered, and relied on, so-called "gap"
medical evidence. The argument was not made to the board, and
the gap medical records were placed before the administrative
judge by stipulation of the parties. MIIF's argument is
accordingly waived. See Porter v. Treasurer & Collector of
Taxes of Worcester, 385 Mass. 335, 338 n.5 (1982); Diamond v.
Pappathanasi, 78 Mass. App. Ct. 77, 89 n.15 (2010). We allow
the employee's request for attorney's fees and costs in
connection with MIIF's cross appeal. See Mass.R.A.P. 25, as
appearing in 376 Mass. 949 (1979). The employee is directed to
file with the clerk of this court materials detailing and
supporting his request for such fees and costs within fourteen
days of the issuance of the rescript in this case. See Fabre v.
Walton, 441 Mass. 9, 10 (2004). MIIF will be afforded fourteen
days to respond.
     7
       As the employee did not prevail on his appeal of the
reviewing board's decision, his request for fees and costs
pursuant to G. L. c. 152, § 12A, is denied.
