Opinion
No. 11–P–1887.
2012-10-23
David RIVERA'S CASE.
By the Court (VUONO, WOLOHOJIAN & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellant, Eastern Casualty Insurance Company Liquidating Trust, appeals from a determination by the reviewing board (board) of the Department of Industrial Accidents (department) that the department lacked jurisdiction to act on what the appellant described as a petition for approval of a third-party settlement under G.L. c. 152, § 15. The appellant maintains that it is entitled to reimbursement for workers' compensation benefits its predecessor in interest paid to David Rivera (employee) totaling more than $570,000. It further states that the employee was injured on June 29, 1994, while working in Rhode Island, and that he settled a Rhode Island lawsuit he filed in Federal court against the tortfeasors whose insurers agreed to pay to him their combined policy limits totaling $125,000. The appellant maintains that the employee's Rhode Island lawsuit was dismissed without any approval of the settlement under G.L. c. 152, § 15, that no payments of the insurance proceeds of the settlement have been disbursed to the employee or to the appellant, and that the insurers of the tortfeasors still hold the money that will fund the settlement. On July 27, 2012, following oral argument, we entered an order retaining jurisdiction of the appeal while remanding the matter to the board “for a fuller explanation of [the] reasoning” for its determination that the department lacked jurisdiction. In a letter dated September 7, 2012, the board responded in writing. It pointed out the § 15 petition in this case was not signed by the employee, or by his legal representative, or by representatives of either of the insurers to the alleged settlement. The only party to sign the § 15 petition was counsel for the appellant. The board also produced correspondence from co-counsel for the employee in the Rhode Island lawsuit which is dated prior to the date the appellant filed its § 15 petition and which indicates that “some type of issue arose with respect to the execution of the releases” in connection with the settlement of the Rhode Island lawsuit and that, as a result, the only payments made by the insurers were for attorney's fees and expenses.
The appellant is correct, as a matter of law, that the fact that the accident occurred in another State is not a bar to the application of the Massachusetts Workers' Compensation Act. See Lavoie's Case, 334 Mass. 403, 406 (1956), and authorities cited. Also, the appellant is correct in describing the purposes of § 15 as (1) to reimburse a workers' compensation insurer when an employee to whom it has paid benefits recovers damages for his injuries in a third-party action, see Lane v. Plymouth Restaurant Group, 440 Mass. 469, 472 (2003), and (2) to preclude double recovery by the employee for the same injury. See Pina v. Liberty Mut. Ins. Co., 388 Mass. 1001, 1002 (1983). The appellant correctly points out that in the case of a third-party action § 15 provides, with one exception not applicable here, that “no settlement by agreement shall be made with such other person without the approval of either the board, the reviewing board, or the court in which the action has been commenced after a hearing in which both the employee and the insurer have had an opportunity to be heard.” G.L. c. 152, § 15, as appearing in St.1991, c. 398, § 39. Finally, there is no apparent reason why the date of the putative settlement in this case is a bar to an attempt by the appellant to enforce its rights to the proceeds of a settlement.
However, as the board explains in its letter dated September 7, 2012, counsel for the appellant has not notified it that the employee has signed or is willing to sign the releases required by the third-party insurers in the Rhode Island lawsuit. Likewise, the assent of the third-party insurers to the alleged settlement is lacking because they did not sign the § 15 petition and have not otherwise manifested to the board their agreement to the settlement. We agree with the board that jurisdiction under § 15 is contingent on the existence of a settlement of a third-party action, which is what triggers the department's obligation, when a petition is filed under § 15, to inquire into the merits of the settlement and the proposed allocation of the proceeds of the settlement. The burden of demonstrating that there is a settlement for purposes of a § 15 hearing lies squarely on the party seeking reimbursement, namely, the appellant, which has failed to meet that burden as to the instant petition.
Neither our decision nor the board's forecloses the appellant from newly filing a properly supported § 15 petition.
Decision of reviewing board affirmed.