KIM OAKES'S CASE.

IRELAND, J. We granted the application of the Workers' Compensation Trust Fund (Fund) for further appellate review in this case. 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

Page 191

171 (2008), because it raised the same issue. [Note 1] For the reasons set forth in the decision in Alves's Case, supra, released today, we affirm the decision of the board.

So ordered.

BOTSFORD, J. (concurring, with whom Marshall, C.J., and Cordy, J., join). For the reasons stated in my dissenting opinion in Alves's Case, ante 171, 180-189 (2008) (Botsford, J., dissenting), I disagree that no statute of limitations applies to claims for reimbursement of compensation for second injuries that occurred while the 1985 version of G. L. c. 152, § 37, was in effect. However, I concur in the disposition of this case because, as the court points out, ante at 191 n.1, the Workers' Compensation Trust Fund failed to argue to the Appeals Court that the court should borrow a statute of limitations for the 1985 version of § 37, and thus has waived the ground on which my dissent in the Alves case is based.