No. 00-353Commonwealth of Massachusetts Superior Court CIVIL ACTION ESSEX, ss.
August 29, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AGNES, JUSTICE.
BACKGROUND
The essential facts are not in dispute. The defendant was an employee of the City of Salem, and suffered a work-related injury on February 26, 1991. After numerous proceedings not relevant to the issues in this case, the parties received notice on December 23, 1998, of a decision by an Administrative Law Judge ordering an increase in the benefits paid to the defendant that was ordered to be retroactive to February 27, 1991. The decision also ordered the plaintiff, City of Salem to pay “interest” on the retroactive award pursuant to G.L.c. 152, § 50. See Defendant’s Memorandum in Support of Motion to Dismiss, exhibit G at 13 (hereafter, “Defendant’s Memorandum”). The plaintiff did not pursue an appeal from this decision or seek to file an appeal late. See G.L.c. 152, § 11C. Defendant’s Opposition, exhibit H. Thereafter, the plaintiff paid the defendant retroactive benefits totaling $72, 085.34. In particular, on or about May 13, 1999, the City of Salem paid the defendant interest totaling $31,500.
On June 21, 1999, the City of Salem sent a letter to the defendant advising her that the interest payment made in May was an error “and the money must be returned to the City.” Defendant’s Opposition, exhibit B. The letter is said by the City to have resulted from the decision by the Appeals Court in Russo’s Case, 46 Mass. App. Ct. 923 (1999) which held that “interest is not part of the compensation payable to an injured employee.” Id., quoting Murphy’s Case, 352 Mass. 233, 235 (1967) Russo’s case was decided on April 13, 1999[1] .
DISCUSSION
The City of Salem relies on G.L.c. 152, § 11D and argues that this court has jurisdiction to order a reduction in benefits in circumstances such as this to avoid unjust enrichment or to enable the self-insurer recover the amount of its overpayments. According to plaintiff City of Salem, it has already initiated steps to recover the amount of the overpayment by “unilaterally reducing the defendant’s weekly compensation amount.” Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss at 4.
Certain of these facts were brought to the court’s attention at the oral argument on the defendant’s motion to dismiss. Because matters outside the pleadings are being considered, but since the essential facts are not in dispute, the court will treat the defendant’s motion to dismiss as a motion for summary judgment under Mass.R.Civ.P. 56. See White v. Peabody Construction Co., Inc., 386 Mass. 121, 127 (1982).
In deciding a motion for summary judgment, the Court must consider the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits in determining whether summary judgment is appropriate.Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Mass.R.Civ.P. 56(c). Summary judgment shall be granted where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v.Commissioner of Correction, 390 Mass. 419, 422 (1983).
G.L.c. 152, § 11D provides as follows:
(1) Any employee entitled to receive weekly compensation under this chapter shall have an affirmative duty to report to the insurer all earnings, including wages or salary earned from self-employment. Insurers shall notify employees of said duty on a form approved by the department. Such form shall indicate that failure to report any earnings may subject the employee to civil or criminal penalties, and shall further indicate that failure to file an earnings report on a form approved by the department within thirty days of an insurer’s request for such filing may result in the insurer’s suspension of the employee’s weekly benefits; provided, however, that no employee shall be required to file an earnings report more often than once every six months.
(2) An insurer in receipt of an earnings report indicating that overpayments have been made shall be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee; provided, however, that the reported earnings are of a kind that could have been considered in the computation of the employee’s compensation rate. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint under section ten or by bringing an action against the employee in superior court.
(3) An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.
(4) Where an order of recoupment against an employee has not been fulfilled, and weekly benefits are owed to an employee under this chapter by an insurer other than that to which recoupment has been ordered, such insurer shall reduce by thirty percent said weekly benefits payable to the employee, and shall pay such thirty percent excess directly to the insurer to whom recoupment has been ordered, until full recovery has been made.
Subsection (1) of the statute is clearly inapplicable as it relates to employees who are receiving benefits under G.L.c. 152 and earnings from self-employment. Subsection (2) complements subsection (1) and provides two alternatives whereby an insurer may recoup overpayments made to an employee who has earnings from self-employment. Thus, subsection (2) is inapplicable. Subsection (3) refers to another specific situation in which an insurer which has paid compensation benefits pursuant to a conference order receives a decision of an Administrative Law Judge or court that indicates there has been an overpayment. In such a case, the insurer may proceed by a unilateral reduction of weekly benefits or, in the alternative by a complaint under G,.L.c. 152, § 10 or an action filed in the superior court. Under this subsection, these latter two options are available only when “overpayments have been made that cannot be recovered” by means of a unilateral reduction in benefits. Finally, subsection (4) of the statute deals with the case in which an insurer has an order of recoupment against an employee that has not been fulfilled, and weekly benefits are owed to the employee by another insurer, the first insurer may secure recoupment by a reduction in benefits paid by the second insurer with the excess going to repay the first insurer.
Based on this analysis of G.L.c. 152, § 11D, there is no basis in this case for the exercise of this court’s jurisdiction because counsel for the plaintiff, City of Salem has informed the court that his client is already engaged in recovering alleged overpayments by means of a unilateral reduction it initiated under G.L.c. 152, § 11D(3). The only ground for relief set forth in the plaintiff’s complaint is G.L.c. 152, § 11D.
Accordingly, on the undisputed facts before the court, there is no basis for the exercise of this court’s jurisdiction under G.L.c. 152, § 11D and summary judgment should be awarded to the defendant.
ORDER
For the above reasons, the defendant’s motion to dismiss is treated as a motion for summary judgment and it is hereby ALLOWED. Judgement shall enter for the defendant. The real estate attachment ordered by the court is and the same is hereby DISSOLVED.
________________________________ Peter W. Agnes, Jr. Justice of the Superior Court
Date: ________________