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In re Murphy12/20/2001
Suffolk.
May 11, 2000
Workers' Compensation Act, Insurer, What insurer liable, Double compensation, Reimbursement of insurer.
Appeals from a decision of the Industrial Accident Reviewing Board.
After consolidation, the case was reported by Lenk, J.
The primary issue in this case is which of two insurance policies covers the workers' compensation claim of the employee. We also discuss the claims of one of the insurance carriers for reimbursement of benefits and penalties paid to the employee. Both insurance companies and the employee filed appeals from the decision of the Department of Industrial Accidents reviewing board (reviewing board). On motion of the parties, the appeals were consolidated. A single justice of this court reported the case to a panel.
Factual Background.
The employee is a Massachusetts resident. She was hired at the Boston headquarters of Patriots' Trail Girl Scout Council, Inc. (employer), to be a camp counselor and unit leader at Camp Wabasso in Bradford, New Hampshire, for the summer of 1994. In July, she was injured in the course of her employment. She was treated at a New Hampshire hospital and released the same day. The parties ultimately stipulated to the extent and duration of the employee's injuries.
At the time of the injury, the employer carried two workers' compensation insurance policies. A Liberty Mutual Insurance Company (Liberty Mutual) policy covered New Hampshire claims and those of some other states, but explicitly excluded coverage for claims under Massachusetts law. A Massachusetts Bay Self-Insurance Group, Inc. (Mass. Bay) policy covered only Massachusetts claims. Following the employee's injury in New Hampshire and the filing of a first report there, Liberty Mutual paid some of the employee's medical bills under its New Hampshire policy, but denied payment of weekly benefits under that policy on the ground that there was "no medical evidence to substantiate disability."
Administrative Proceedings.
Some time after the employee returned home to Massachusetts, she filed a claim against Liberty Mutual with the Commonwealth's Department of Industrial Accidents (DIA). Liberty Mutual denied the Massachusetts claim on the ground, among others, that it did not provide coverage under the Commonwealth's workers' compensation law. The employee then filed a claim against Mass. Bay with the DIA. At the conference pursuant to G.áL. c.á152, á10A, an administrative judge of the DIA ordered Liberty Mutual to pay the employee's benefits. Liberty Mutual filed a motion for reconsideration. A month later, when Liberty Mutual had not paid the benefits required by the conference order, the employee requested a status conference. At the status conference Liberty Mutual again asserted that it was not an insurer under the Massachusetts Workers' Compensation Act. Mass. Bay agreed to accept an amended order, which required it to pay the employee benefits under G. L. c.á152, á15A, while at the same time appealing the order.
Following an evidentiary hearing, see G.áL. c.á152, á11, the administrative judge found that Liberty Mutual was an insurer under c.á152, á1(7). He concluded that Liberty Mutual had waived its defense that it was not an insurer under Massachusetts law by failing to assert that defense in its original denial of the employee's New Hampshire claim and by paying medical benefits under New Hampshire law. The administrative judge also thought it relevant that the Liberty Mutual premiums for the New Hampshire policy were based at least in part on the payroll for Camp Wabasso, which included the employee's wages. In consequence of these con
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