In re Michael Dufresne's Case2/27/2001
Suffolk.
November 9, 2000.
Workers' Compensation Act, Decision of Industrial Accident Reviewing Board, Subsequent injury. Words, "Offset".
Appeal from a decision of the Industrial Accident Reviewing Board.
The reviewing board of the Department of Industrial Accidents (board) affirmed the decision of an administrative judge who awarded a specific period of weekly benefits for the temporary, total incapacity of the employee, as well as several periods of compensation for his partial incapacity, which was continuing. The board reversed the judge's order allowing Wausau Insurance Company (Wausau), the employer's workers' compensation insurer, to offset, under the provisions of G. L. c. 152, ? 15, the amount received by the employee in a settlement of a third-party claim (the so-called "Hunter offset"). Wausau has appealed. Our review is limited to the board's decision, see Percoco's Case, 418 Mass. 136, 138 (1994), and we affirm the decision of the board.
1. Wausau's claim to an offset. We first state the undisputed facts that form the background for Wausau's claim to an offset. The employee, Michael Dufresne, whose employer was Foss Manufacturing Company (Foss), sustained a workplace injury on September 12, 1986, which resulted in the amputation of his right leg below the knee. The employee and his wife brought suit against LaRoche et Fils (LaRoche), the manufacturer of the machine involved in the accident, and against Frank G. W. McKittrick Company, Inc. (McKittrick), the distributor and sales representative of LaRoche, which sold the LaRoche machine to Foss. McKittrick's insurer (Integrity Insurance Company) became insolvent, and the Massachusetts Insurers Insolvency Fund (Fund) became obligated to pay unpaid claims to the extent that they were "covered claims" within the meaning of G. L. c. 175D, ? 1(2). See note 5, infra. The limit of liability of the Fund for any one claim is $300,000. G. L. c. 175D, ? 5(1)(a).
The Dufresnes' suit against McKittrick and LaRoche was settled, and on May 17, 1991, the settlement was approved by a judge of the Superior Court. See G. L. c. 152, ? 15, discussed infra.
The settlement agreement (agreement) is set forth in a pleading filed in the Middlesex
Superior Court and bears the caption, "Joint Petition for Approval of Settlement Pursuant to MGL Chapter 152, Section 15." The parties to the agreement are the employee and his wife, Wausau, McKittrick, and LaRoche. The agreement recites the circumstances of the employee's accident and the extent of his injuries, including that fact that the employee's prosthetic device (his artificial limb) "requires periodic replacement and it is anticipated as the plaintiff ages, and conditions in his leg change, he will require additional and ongoing treatment" (emphasis added).
The agreement calls for the payment of $100,000 to the employee, subject to attorney's fees and expenses. The agreement recites that the employee's claim had been forwarded to the Fund because of the insolvency of McKittrick's insurer, that under the provisions of G. L. c. 175D, the Fund "is prohibited" from satisfying Wausau's lien (for medical expenses and compensation benefits paid in the total amount of $106,321), and, to preclude any double recovery by the employee, the Fund is required to reduce the coverage available to the employee, $300,000, by the amount of Wausau's lien, $106,321, leaving the Fund a disposable balance of $193,679. On the basis of that availability, the agreement recites that the $100,000 settlement was reached. After deducting attorney's fees and expenses, the plaintiff was to receive from the Fund the net amount of $65,864.85
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