No. 05165692 (1999). EMPLOYEE: Harry Sherr.

• Case Date: February 17, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 05165692 (1999). EMPLOYEE: Harry Sherr COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Harry Sherr EMPLOYER: City of Peabody INSURER: City of PeabodyBOARD NO. 05165692REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES Ronald L. St. Pierre, Esq., for the employee Daniel Kulak, Esq., for the self-insurer Smith, J. The municipal self-insurer appeals a decision awarding more than fourteen years of retroactive § 34A permanent and total incapacity benefits. The decision did not credit the accidental disability retirement payments that the City had paid the employee. In this case of first impression, we discuss the coordination of benefits between the workers' compensation system, G.L. c. 152, and the contributory retirement system for public employees, G.L. c. 32. Because G.L. c. 32, § 14(2) places the ultimate responsibility for preventing a double recovery on the City, and the City did not avail itself of the statutory remedies provided by c. 152 and c. 32, we affirm the decision not to subtract the pension benefits from the workers' compensation award. On January 28, 1977, Harry Sherr sustained an industrial injury to his lower back arising out of and in the course of his employment for the City of Peabody. The City, being self-insured, accepted liability for the injury, and paid § 34 temporary total incapacity benefits from the date of injury until their exhaustion on December 22, 1982. (Dec. 5.) Around that time, Sherr applied for and received accidental disability retirement benefits pursuant to G.L. c. 32. Over ten years after retiring, on January 25 1993, Sherr filed the present claim for additional workers' compensation. (Dec. 7.) He claimed § 34A permanent and total incapacity benefits from December 23 1982, the date by when he had exhausted all the temporary compensation benefits that the law provided. By the time his case reached hearing, Sherr was eighty-two (82) years old. (Dec. 6.) After hearing, the judge concluded that Sherr was entitled to the workers' compensation benefits that he claimed, without any offset for the accidental disability retirement benefits that he had been paid over the prior fourteen plus years. (Dec. 18.) The City appeals to the reviewing board, complaining that it is being made to pay twice for the same injury. It asserts that Sherr's claim should be time barred by the equitable doctrine of laches. The City's complaint has great superficial merit because the law abhors a double recovery for the same injury or loss. Pierce's Case, 325 Mass. 649, 658-659 (1950) (no workers' compensation for the same period during which employment security benefits paid); Mizrahi's Case, 320 Mass. 733, 737-738 (1947) (no compensation under G.L. c. 152 and under the Longshoremen's and Harbor Workers' Compensation Act for the same period of total incapacity); McLaughlin's Case, 274 Mass. 217, 222 (1931) (New Hampshire workers' compensation benefits...