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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.