The Appeals Court affirmed the decision of a single justice who had affirmed a decision of the reviewing board of the Department of Industrial Accidents (board) holding that, where claims are filed by workers' compensation insurers for reimbursement pursuant to G.L. c. 152, § 37, and the worker sustained an injury while the 1985 version of the statute was in effect, no statute of limitations applies to the claim. Oakes's Case, 67 Mass. App. Ct. 81, 82 (2006). This case was paired for argument with Alves's Case, ante 171 (2008), because it raised the same issue.

February 13, 2007. Appeal from the Reported below: 67 Mass. App. Ct. 81 (2006). This case will be argued with STEVEN ALAVE'S Case (A.C. No. 2006-P-0086).

These may be generally described as injuries resulting from aggravation of preexisting conditions. See Oakes's Case, 67 Mass.App.Ct. 81, 82–83, 851 N.E.2d 1119 (2006), S. C., 451 Mass. 190, 884 N.E.2d 467 (2008). The nomenclature refers to the form used by the Department of Industrial Accidents to memorialize the § 37 reimbursement agreements between the trust fund and the insurer.

"While the duty of statutory interpretation remains with the courts, we will not substitute our judgment for that of an administrative agency if its interpretation of a statute is reasonable and its findings are supported by substantial evidence." Oakes's Case, 67 Mass. App. Ct. 81, 84 (2006). See Eastern Cas. Ins. Co. v. Commissioner of Ins., 67 Mass. App. Ct. 678, 683 (2006).

To qualify for reimbursement under § 37, payments must be made to an employee with a known physical impairment who suffers a subsequent injury that results in a disability that is "substantially greater by reason of the combined effects of such impairment and subsequent personal injury than that disability which would have resulted from the subsequent personal injury alone." Oakes's Case, 67 Mass. App. Ct. 81, 82-83 (2006), further appellate review granted, 448 Mass. 1105 (2007), quoting from G. L. c. 152, § 37, as appearing in by St. 1991, c. 398, § 71. Reimbursements are not to exceed seventy-five percent of the total payments made to the employee, and no reimbursement is made for payments in the first two years (104 weeks) of disability. The purpose is to encourage employers to hire previously injured employees by reimbursing a portion of the increased compensation burden incurred when such an employee suffers further work-related injury. See Daly v. Commonwealth, 29 Mass. App. Ct. 100, 101-102 (1990).

By virtue of the employee's August 29, 2001 date of injury, the provisions of § 37, as amended by St. 1991, c. 398, § 71, applied to the insurer's claim for reimbursement. See Oakes's Case, 67 Mass. App. Ct. 81, 85 fn.6 (2006). It is only against that factual background that the single justice's holding can be properly construed:

Consequently, the two-year statute of limitations in effect at the time of Rassias' injury governs this action. See, e.g., Oakes's Case, 67 Mass.App.Ct. 81, 87 (2006) (applying statute of limitations in effect at the time action arose; "if the Legislature had intended the new statute of limitations to have retroactive application, it would have been natural for the Legislature to express such an intention . . ."). Even if Rassias' action was not barred by the statute of limitations expressed in G.L.c. 161A, § 38, it would be still be subject to dismissal for failure to state a claim.

(Dec. 3.) The Trust Fund acknowledges that the decision of the Appeals Court inOakes's Case, 67 Mass. App. Ct. 81 (2006), is dispositive of its argument that the two-year statute of limitations inserted by the 1991 amendment is applicable here. (Trust Fund br. 5.)