Workers’ compensation – Reimbursement – Insolvency

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Where a claim for reimbursement of benefits from the Workers’ Compensation Trust Fund was denied by the reviewing board of the Department of Industrial Accidents, the board’s decision must be reversed given that the precedent it relied upon — Home Ins. Co. v. Workers’ Compensation Trust Fund, 88 Mass. App. Ct. 189 (2015) — has been overruled.

“Employer’s Reinsurance Corporation (ERC) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), denying ERC’s claim for reimbursement of certain workers’ compensation benefits from the Workers’ Compensation Trust Fund. The board’s decision properly relied on our opinion in Home Ins. Co. v. Workers’ Compensation Trust Fund, 88 Mass. App. Ct. 189 (2015). Since the board’s decision, however, first this court and then the Supreme Judicial Court have overruled Home Ins. Co. on the ground that the Legislature has listed the only three categories of employers not entitled to reimbursement, and thus the board could not add a fourth (there, that the insurer was no longer writing new policies). See Arrowood Indem. Co. v. Workers’ Compensation Trust Fund, 104 Mass. App. Ct. 419, 423-425 (2024), S.C., 496 Mass. 222 (2025). We reject an attempt to add a different fourth exception (here, that the employer is insolvent) for the same reasons. Further concluding that ERC’s appeal was timely and that ERC is an ‘insurer’ within the meaning of G.L.c. 152, §1(7), we reverse. …

“In 1979, Annie Talbert, an employee of the Polaroid Corporation (Polaroid), sustained an industrial injury. …

“… In 2004, Polaroid declared bankruptcy. …

“… The Legislature has stated that three categories of employers are ineligible for reimbursement — those that chose to opt out of the trust fund — which does not include insolvent employers. G.L.c. 152, §65(2), first par. The board cannot create a fourth exception, whether for insurers in run-off or for insolvent employers or for anything else. The board can no more rewrite a statute than we can. …

“Polaroid does not fall into any of the three exceptions stated in G.L.c. 152, §65(2), and G.L.c. 152, §34B(c). At the time of Talbert’s injury, Polaroid was a self-insurer that participated in the trust fund. … Similarly, ERC does not fall into any of the three exceptions. Accordingly, it is entitled to reimbursement under the plain meaning of the statute. …

“The board’s decision is reversed. We remand to the board for further proceedings consistent with this opinion.”

Employer’s Reinsurance Corporation v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-010-26) (14 pages) (Ditkoff, J.) Appeal from a decision of the Industrial Accident Reviewing Board. Ronald C. Kidd (Charles R. Casartello Jr. also present) for the plaintiff; Arjun K. Jaikumar for the defendant (Docket No. 24-P-116) (Jan. 30, 2026).

Click here to read the full text of the opinion.