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Lane v. Plymouth Restaurant Group12/4/2003
The relevant provisions of G. L. c. 152, § 15, read:
" o settlement by agreement shall be made with such other person without the approval of . . . 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. At such hearing the court shall inquire and make a finding as to the taking of evidence on the merits of the settlement, on the fair allocation of amounts payable to the employee and the employee's spouse, children . . . who may have claims arising from the injury for which are payable, under this chapter in which the action has been commenced after an opportunity has been afforded both the insurer and the employee to be heard on the merits of the settlement and on the amount, if any, to which the insurer is entitled out of such settlement by way of reimbursement . . . ."
"The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all the words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447 (1934), citing Commonwealth v. S.S. Kresge Co., 267 Mass. 145, 148 (1929).
We have consistently recognized that § 15 is designed to reimburse the workers' compensation insurer and to prevent the employee's double recovery. Rhode v. Beacon Sales Co., 416 Mass. 14, 17 (1993); Eisner v. Hertz Corp., 381 Mass. 127, 131 (1980); Richard v. Arsenault, 349 Mass. 521, 524 (1965). General Laws c. 152, § 15, provides that the "sum recovered shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee." " n insurer's right to full reimbursement of benefits it has paid to the injured employee . . . may not be compromised, abridged, or equitably allocated to others so as to deprive the insurer of its lien." Hultin v. Francis Harvey & Sons, 40 Mass. App. Ct. 692, 695 (1996). Unless an excess amount is recovered, "the entire recovery is for the insurer." Rhode v. Beacon Sales Co., supra at 19.
The plain words of the statute provide the employee and the workers' compensation insurer an opportunity to be heard ("after a hearing in which both the employee and the insurer have had an opportunity to be heard"). The statute gives the insurer "an opportunity to be heard and to challenge the proposed [settlement] allocation." Corbett v. Related Cos. Northeast, 424 Mass. 714, 721 (1997). In certain circumstances, including those here, an opportunity to be heard is meaningless without cross-examination of witnesses or presentation of evidence. The statute further provides that " t such hearing the court shall inquire and make a finding as to the taking of evidence on the merits of the settlement, on the fair allocation of amounts payable to the employee and the employee's spouse, children . . . ." We interpret this language to mean that once the insurer puts forth a credible argument challenging the settlement allocation, the judge must take evidence on that issue, i.e., permit the insurer to cross-examine witnesses and to present evidence. Walsh v. Telesector Resources Group, Inc., 40 Mass. App. Ct. 227, 231 (1996) (judge "was required by § 15 to take evidence and, based upon that evidence, to determine what would constitute a fair allocation of the recovery between the employee and his spouse"). When taking evidence on the fairness of a settlement allocation, the judge should consider, among other things, the relative merits and comparative wort
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