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Green's Case2/12/1999
97-P-2323 Appeals Court
Limitations, Statute of. Workers' Compensation Act, Double compensation.
This is an appeal from the judgment of a single Justice affirming a decision of the Industrial Accident Board (board).
The issue presented for review arises out of the timeliness of Green's claim for double compensation as a result of his employer's alleged wilful misconduct in connection with Green's August 3, 1990, fall into an elevator shaft. See G. L. c. 152, Sect. 28. The employer's workers' compensation insurer, Wausau Insurance Co., accepted Green's case and paid total incapacity benefits. On December 23, 1994, Green successfully settled a tort suit against a third-party contractor and subcontractors at the construction site for $1,500,000.
Green filed the claim at issue on February 21, 1995, more than four years following his accident. At conference, the employer and Wausau moved to dismiss Green's claim as time barred under G. L. c. 152, Sect. 41 (four-year statute of limitations). An administrative Judge agreed to bifurcate the hearings so that the question of the application of the statute of limitations would be resolved prior to a hearing on the merits of the Sect. 28 claim.
The motion to dismiss was heard on a statement of agreed facts. The administrative Judge ruled that Green's Sect. 28 claim was timely filed because Wausau's payment of benefits tolled the four-year statute of limitations. The employer and Wausau appealed, and the board summarily affirmed the administrative Judge's decision. The single Justice also affirmed the decision of the board. This appeal followed.
General Laws c. 152, Sect. 41, as revised in 1985 (St. 1985, c. 572, Sect. 50), and as applicable to this 1990 injury, provides as follows:
"No proceedings for compensation payable under this chapter shall be maintained . . . unless any claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment. . . . "The payment of compensation for any injury pursuant to this chapter or the filing of a claim for compensation as provided in this chapter shall toll the statute of limitations for any benefits due pursuant to this chapter for such injury" (emphasis supplied).
Green's Sect. 28 claim is barred unless the four-year statute of limitations is tolled. The single Justice wrote that the plain language of the statute controls and specifically provides that "payment of compensation" pursuant to c. 152 tolls the statute "for any benefits due." We agree.
Thayer's Case, 345 Mass. 36 (1962), upon which the insurer and the employer rely, is inapposite. That case involved an earlier version of Sect. 41 which -- unlike the present Sect. 41 -- contained no tolling provision for the payment of compensation, or the filing of a claim for compensation. Thayer's case also involved a former version of Sect. 49 of c. 152 (as in effect prior to St. 1985, c. 572, Sect. 53) which set forth exculpatory provisions for late filed claims. First, the absence of prejudice to both the employer and the insurer. Second, in no event was a late filed claim to be barred if there had been an agreement to pay compensation or if compensation had been paid. The live issue in Thayer was prejudice. The court held that a late filed Sect. 28 claim involved the rights of both the insurer and the employer, and attention must be paid to whether either of these parties was prejudiced by the delay in filing the claim. Id. at 44. The court concluded that neither the insurer nor the employer was prejudiced by the delay and affirmed the
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