DEFINITIONS

Employer

“an individual, partnership, association, corporation or other legal entity, or any two or more of the foregoing engaged in a joint enterprise . . . employing employees subject to this chapter,”G. L. c. Sec. 1(5), not including owners of owner occupied residences with no more than three rental units employing maintenance or repair workers, and non-profit entities staffed by volunteers.

Employee

“every person in the service of another under any contract of hire, expressed or implied, oral or written….” Sec. 1(4). The only exceptions are seasonal, casual or part-time domestic servants, some professional athletes, real estate and some other salespersons, and some taxi drivers. Sole proprietors may elect to cover themselves under the act. Non-citizens are covered by the act, regardless of their status as being legally or illegally within the Commonwealth. Medellin v. Cashman KPA, 17 Mass. Workers’ Comp. Rep. 592 (2003).

Leased Employee

An employee of an employee leasing company. That entity is “a sole proprietorship, partnership, corporation or other form of business entity whose business consists largely of leasing employees to one or more client companies under contractual arrangements that retain for such employee leasing companies a substantial portion of personnel management functions, such as payroll, direction and control of workers, and the right to hire and fire workers provided by the employee leasing company; provided, however, that the leasing arrangement is long term and not an arrangement to provide the client company temporary help services during seasonal or unusual conditions.” Sec. 14A.

Independent Contractor

Though not defined in G. L. c. 152, the status of the independent contractor is an important part of the law. Independent contractors are not covered. What constitutes an independent contractor, in a nutshell, comes down to the right to control the work being performed. The multiple factors used in that assessment are derived from decisional law and the Restatement (Second) of Agency, Sec. 220(2) (1958). They are set out in MacTavish v. O.Connor Lumber Co. , 6 Mass. Workers’ Comp. Rep. 174 (1992), and were referenced by the Appeals Court in Whitman’s Case, 80 Mass. App. Ct. 348 (2011)
(1) the extent of control exercised by the employer over the details of the work (supported independent contractor status);
(2) whether the worker was engaged in a distinct occupation or business (supported independent contractor status);
(3) whether, in the locality, the type of work usually proceeded under the direction of an employer or by an unsupervised specialist (supported independent contractor status);
(4) the skill required for the occupation (supported independent contractor status);
5) whether the employer or the worker supplied the tools and place of work (on balance, supported independent contractor status);
(6) the length of time of the working relationship (supported employee status);
(7) the method of payment (supported employee status);
(8) whether the work was part of the regular business of the employer (supported employee status);
(9) whether the parties believed that they were creating an employment relationship (Whitman's belief of his "locked in" posture supported employment status against Pace's contrary belief);
(10) whether the alleged employer constituted a business (supported employee status);
(11) the tax treatment applied to payment (use of form 1099 favored independent contractor status); and
(12) the presence of the right to terminate the relationship without liability, as opposed to the worker's right to complete the project for which he was hired (supported employee status).

Whitman, supra at 353 n.3. The status of independent contractor is disfavored as a general rule, and there is a presumption of employee status, which will be found in the great majority of cases. Where a general contractor is insured and subcontractors or independent contractors are engaged in “part of or [a] process in” the trade or business conducted by the general, that insured general contractor must provide coverage for those otherwise uninsured workers. Sec. 18.

EXCLUSIVE REMEDY

General Rule

Workers’ compensation, General Laws c. 152 (“the act”), is a compulsory insurance plan for all private employers. The act is administered by the Department of Industrial Accidents (“department”), which has exclusive jurisdiction over workplace injuries. Public employer coverage will not be discussed herein.

Immunity from Civil Action

Section 24 sets out the exclusivity bar to an employee’s civil suit for tort damages against the employer:
An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injury, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right….

As a practical matter, waiver of the Sec. 24 bar from suit at the time of hire is never seen.

JURISDICTION

General Rule

The act applies to all injuries which occur within Massachusetts while employed in the service of another under any contract of hire. “Any contract of hire” means just that; it need not be a Massachusetts contract of hire. See Dean v. Access Nurses, Inc., 23 Mass. Workers’ Comp. Rep. 303 (2009)(travelling nurse from California injured in Commonwealth covered by G.L. c. 152).

Extraterritorial

A work injury need not occur within Massachusetts to be covered by the act, so long as there is a contract of hire in Massachusetts. Section 26 specifically provides:

If an employee who has not given notice of his claim of common law rights of action under section twenty-four, or who has given such notice and has waived the same, receives a personal injury arising out of and in the course of his employment, or arising out of an ordinary risk of the street while actually engaged, with his employer's authorization, in the business affairs or undertakings of his employer, and whether within or without the commonwealth, he shall be paid compensation by the insurer or self-insurer….

Where an injury is extra-territorial, the employee may collect benefits from either jurisdiction, the place of injury or the place of the employment contract. See Conte’s Case, 51 Mass. App. Ct. 398 (2001)(employee injured in New Jersey collected NJ compensation benefits, and could then receive whatever addition compensation was due under the act in Massachusetts).

COMPENSABILITY

General Rule

There is no comprehensive definition of “personal injury” within the act. The time-honored formulation of “arising out of and in the course of [the] employment,” sec. 26, has little inherent meaning. One can say that “arising out of” generally refers to the content of the work, what was being done at the time of the injury, while “in the course of” is a more temporal concept. However, that being said, it is not necessary that the employee actually be doing his particular job when he is injured to be covered. Maybe the best definition is that contained in Caswell’s Case, 305 Mass. 500 (1940), which states that the injury, to be compensable, must arise out of the “nature, conditions, obligations or incidents of employment…looked at in any of its aspects.” Suffice it to say, this is a very broad definition.

Employee Taken “As Is:”

In general, the operative fact that an employer takes the employee “as is” has always been the lynchpin of coverage under the act. “In common speech the word ‘injury,’ as applied to a personal injury to a human being, includes whatever lesion or change in any part of the system produces harm or pain or a lessened facility of the natural use of any bodily activity or capability.” Burns’s Case, 218 Mass. 8 (1914).

Infectious Diseases:

"Personal injury" includes infectious or contagious diseases if the nature of the employment is such that the hazard of contracting such diseases by an employee is inherent in the employment. Sec. 1(7A).

Cumulative Injuries:

A personal injury need not be traumatic in nature; it can develop gradually as the result of the cumulative work-related stresses and aggravations. Trombetta’s Case, 1 Mass. App. Ct. 102 (1973). However, in Zerofski’s Case, 385 Mass. 590 (1982), the court explicitly held that “wear and tear,” namely the gradual onset of an ailment due to prolonged sitting, standing or walking, is not compensable. This is because such an injury does not arise out of an identifiable condition of the employment, one which is “not common and necessary to all or a great many occupations.”

“Combination” Injuries:

Section 1(7A) contains many different provisions applying certain types of claims. Most common is the provision regarding “combination” injuries:

If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment

Sec. 1(7A) is an affirmative defense which the insurer must raise at hearing in order to hold the employee to its heightened standard of proving that the work injury was “a major cause” of the resultant disability. The insurer needs to come forward with some medical evidence which indicates that the employee’s claimed injury “combined with” a pre-existing condition attributable to an injury or disease to cause the resultant disability. MacDonald’s Case, 73 Mass. App. Ct. 657 (2009). The most common of these is the back strain superimposed upon a pre-existing condition of degenerative disc disease, but the section applies wherever the predicate element may be shown. The burden of coming forward with medical evidence is not high, but it must be sufficient to indicate that there is a combination of causes at play in the employee’s claimed disability. Non-medical factors, such as age, which cannot be attributed to “injury or disease” do not qualify as pre-existing conditions.

Where sec. 1(7A) “major” causation applies, by virtue of the insurer’s effective raising of the defense, the employee then has the burden of either showing that the insurer’s evidence of the statutory elements is, in fact, lacking, or showing that the work injury satisfies the statute by virtue of a medical opinion of “major” causation. Vieira v. D’Agostino Assoc., 19 Mass. Workers’ Comp. Rep. 50 (2005). That medical opinion may take various forms and the word, “major,” is not always necessary. However, something in the evidence must show the required amount which the work injury contributed to the disability. Cornetta’s Case, 68 Mass. App. Ct. 107 (2007). “A major” cause can be less than a 50% cause, Goodwin v. Keyspan New England, 24 Mass. Workers’ Comp. Rep.(2011), but it cannot be “minor.” Pandey v. Montgomery Rose Co., 15 Mass. Workers’ Comp. Rep. 442 (2001).

Mental Injuries

Section 1(7A) also includes an entirely separate standard of causation applicable to mental/emotional injuries claimed to be the result of the employee’s work. This standard is “predominant contributing cause,” and it applies to all such injuries alleged to have occurred as a direct result of an event or series of event at work: “Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment.” In cases where the only cause of the mental injury in an employee’s history is the employment, this standard is necessarily met. Bouras v. Salem Five Cent Savings Bank, 18 Mass. Workers’ Comp. Rep. 191 (2004). Cases in which the employee has a history of mental/emotional illness, the medical evidence must weight the causes, in the same manner as with the “major” cause assessment, and then provide an opinion which meets the “predominant cause standard. May’s Case, 67 Mass. App. Ct. 209 (2006). However, the Appeals Court in May’s Case rejected the notion that the “predominant” cause needs to be more than a 50% cause of the claimed emotional injury. Id.

Within the sec. 1(7A) definition of work related mental injuries subject to “predominant” causation is an exemption for a class of activity at the workplace defined as “bona fide personnel actions:”

No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

Thus, any emotional injury claim that is mostly the result of these necessary actions on the part of an employer is not compensable. The inclusion within the definition of the specific personnel actions, as listed, is not the exclusive list of the actions which qualify under the exemption. Upton’s Case, 84 Mass. App. Ct. 411 (2013). Any actions that are reasonably related to those are within the exclusion, and cannot be used by an employee to support a claim of work related emotional injury. However, where the subject employer action is an intentional act meant to cause the emotional harm, the employer’s “bona fide” exemption clearly does not apply.

Any medical opinion assessing causation in an emotional injury case must not include any exempted causes within its causation opinion. Together, the “predominant” cause standard and the BFPA exemption make the employee’s burden of proof in these cases very high.

An exception to the “predominant contributing cause” standard for work-related mental injuries are cases in which the mental injury manifests as the result of a physical injury. These cases, called mental “sequelae,” lack the direct cause relationship with “an event or series of events within any employment” required for the predominant cause standard to apply. They are governed by whatever the standard of causation governs the precipitating physical injury, either “as is” or “major” causation. Moreover, in cases in which the mental sequelae has a pre-existing mental condition at play, that sequelae claim is necessarily governed by “major” causation, regardless of the causal standard applicable to the precipitating physical injury. Cornetta’s Case, 69 Mass. App. Ct. 107 (2007) .

EXCLUSIONS AND DEFENSES

Recreational Activity

Section 1(7A) also contains a non-medical exemption from liability under the workers’compensation law. This is the “recreational activity” exemption and the provision reads:

"Personal injury" shall not include any injury resulting from an employee's purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof.

Hammond’s Case, 62 Mass. App. Ct. 684, 686 (2004), provides a good example of the analysis which in undertaken in assessing this exclusion in the context of a ski trip:

" `Purely voluntary participation [in any recreational activity]' is noncompensable when injury occurs during the recreational activity and the employer has done nothing more than pay for the costs of that activity." Bengtson's Case, 34 Mass. App. Ct. 239, 245 (1993). See G. L. c. 152, s 1(7A). The mere fact that the employer authorized the employee to ski while she was in Stowe by paying for her equipment and lift ticket is insufficient to carry the employee's burden. There must be an objective element of compulsion on the part of the employer in order for an employee's participation in such an activity to fall outside of the exclusion set out in G. L. c. 152, s 1(7A). See Bengtson's Case, 34 Mass. App. Ct. at 244. There was no evidence in this case that the employer had objectively compelled or coerced the employee to ski.

Going and Coming Rule

Case law has defined the normal daily commute to and from a fixed place of employment as an area of non-compensability. See Rose v. Kerins Concrete, 25 Mass. Workers’ Comp. Rep. 271 (2011). However, “fixed place” is a fluid concept. In Rose, the Reviewing Board found the employee’s drive to a one-day work site non-compensable:

The test for compensability is whether the employment has impelled the employee to make the trip, in the sense that the employee's job duties require the travel and he is actively engaged in the employer's business when injured. Caron's Case, 351 Mass. 406, 409 (1966); Chernick's Case, 286 Mass. 168, 172 (1934). This employee's travel was in the nature of a commute from his home to that day's assigned jobsite, and at the time and place of the motor vehicle accident, the employee faced no greater risk of the street than any other commuter. As such, the employee failed to prove that his injury arose out of and in the course of his employment.

Traveling Employees

The general rule is subject to many exceptions, the most common being the “traveling employee,” one whose work specifically exposes her to the “ordinary risk of the street while actually engaged, with his employer’s authorization, in the business affairs or undertakings of his employer.”Sec. 26. Even within that framework, however, there operates a general rule that the first and last legs (to and from home) of a traveling employee’s daily “rounds” are to be considered as barred by the going and coming rule. Gwaltney’s Case, 355 Mass. 333 (1969)(employee injured in public parking garage on his way to central office before going out on sales calls barred by going and coming rule). But see Rouse v. Greater Lynn Mental Health, 16 Mass. Workers’ Comp. Rep. 7 (2002)(special errand for employer’s benefits allowed for travelling nurse’s injury on first trip of day from her home to be compensable).

Premises and Parking Lots:

The employee is covered by the going and coming rule until he has come onto the premises of the employer. See Barrett v. Suffolk County House of Correction, 10 Mass. Workers’ Comp. Rep. 769 (1996)(employee fell on icy public sidewalk in front of door into the prison where he worked; award of compensation reversed). Where an employee parks in a parking lot owned/managed by the employer, a slip and fall in that parking lot is compensable. Rogers’s Case, 318 Mass. 308 (1945). Cf. Gwaltney’s Case, supra (injury in public parkng lot).

Notice and Statute of Limitations

The employee is required to give the employer or insurer notice of a work injury “as soon as practicable after the happening thereof.” Sec. 41. Notice may be in “any form of written communication.” Sec. 42. The failure to give such notice, however, will not bar the claim, “if it is shown that the insurer, insured or agent had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice.” Sec. 44. Prejudice may be shown by the unavailability or destruction of evidence, or the inability of the insurer to have the employee examined by its own doctor in a timely manner. Also contained in sec. 41 is the c. 152 statute of limitations, which dictates that a claim must be filed within four years from the date of injury or “the date the employee first became aware of the causal relationship between his disability and his employment.” This “discovery notice” provision means that the statute of limitations does not begin to run until the employee has knowledge from a doctor of the causal connection between his medical complaint and his work. See Sullivan’s Case, 76 Mass. App. Ct. 26 (2009). It applies most commonly in cases of industrial exposures, heart attack or stroke.

Job Offer and Other Earning Capacity Determinants

The insurer can limit its exposure to weekly benefit entitlement by having the employer tender a job offer to the injured employee. The procedure for this is set out in secs. 8(2)(d) and 35D(3) and (5). In a nutshell, these sections require that the insurer possess a medical report from either the treating doctor or the sec. 11A impartial physician which “indicates that the employee is capable of return to the job held at the time of injury, or other suitable job pursuant to section 35D” and “a written report from the person employing said employee at the time of the injury indicating that such a suitable job is open and has been made available, and remains open to the employee.” Section 35D, which governs the calculation of earning capacity, which reduces the employee’s entitlement to weekly benefits, dictates that, by following the prescribed procedures, the judge must find the employee’s capacity to work in accordance with the job offer. Section 35D(5) codifies the common law foundation – Frennier’s Case, 318 Mass. 635 (1945) – for determining vocational capacity, in light of the employee’s medical disability:

For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee's injury, so long as such job bears a reasonable relationship to the employee's work experience, education, or training, either before or after the employee's injury.

Absent a suitable job offer, the administrative judge must resort to the other subsections of 35D to determine the employee’s earning capacity. Paragraph 1 mandates the use of the employee’s actual earnings during the period of his claimed disability. However, 35D specifically directs the judge to use “the greatest” amount in the options listed. Thus, to the extent the judge finds that the employer has made a suitable job offer, which would have the injured employee earning more than what he might actually be making, that higher amount must be used. Likewise, if the judge finds, based on a vocational analysis with proper factual support, see Scheffler’s Case, 419 Mass. 251 (1994), that an injured employee is capable of earning in the open labor market an even greater amount, that will be the assigned earning capacity. See 35D(4)(“The earnings that the employee is capable of earning”). As a practical matter, this is the method most frequently used by judges in the assignment of earning capacity.

Dalbec’s Case, 69 Mass. App. Ct. 306 (2007), and Eady’s Case, 72 Mass. App. Ct. 724 (2008), have placed greater emphasis on the use of vocational experts and labor market surveys to put forward a “factual basis” upon which the judge may make her determination as to what the employee “is capable of earning” under sec. 35D(4). Eady categorized the earning capacity assessment into three parts, all of which need to be addressed by the judge in her subsidiary findings of fact: 1) Employee’s medical limitations, most frequently as established in the impartial medical opinion, 2) Employee’s vocational capabilities, i.e., age, education, training, work experience and transferable skills, placed in evidence through the employee’s Biographical Data Form160, and testimony at hearing. See Scheffler, supra, and Frennier, supra, and 3) The market for the employee’s skills. The last component is the result of the Dalbec analysis, which stands for the proposition that the judge cannot pull an earning capacity in the open labor market out of the thin air.

Unemployment Benefits

If a partially disabled employee is eligible to receive unemployment benefits, the insurer may request that the employee file for such benefits. Sec. 36B(2). If the employee fails to comply with the insurer’s request within 60 days, the insurer may suspend payment of partial incapacity benefits. If an employee is receiving unemployment benefits, such benefits are credited, dollar-for-dollar, against payment of partial incapacity benefits under sec. 35. Id. The rationale for this provision is that industry should not be saddled with a double burden of benefit entitlement for the same period in which wages are not being earned. Smith v. Amer. Tissue Mills 10 Mass. Workers’ Comp. Rep. 450 (1996).

Of course, a totally incapacitated employee cannot hold herself out to be employable, and therefore, an employee who is receiving unemployment benefits cannot also receive total incapacity benefits. Sec. 36B(1).

Employee’s Serious and Wilful Misconduct

Under Sec. 27, an insurer may defend a claim on the basis of the employee’s intentional misconduct. However, the section is rarely used, and case law in recent years only establishes that driving while impaired by the consumption of alcohol, to the degree of twice the legal limit in the Commonwealth, constitutes serious and willful misconduct sufficient to bar that employee’s claim for benefits. Jones v. Southeastern Mechanical Serv., 24 Mass. Workers’ Comp. Rep. 323 (2010).

Fights: Even a fight at work, started by the employee injured thereby, is not barred by sec. 27, where the origin of the fight is found to be over a work-related matter. Dillon’s Case, 324 Mass. 102 (1949).

False Representation of Physical Condition By Employee

Another rarely used section offering a defense to payment of benefits is sec. 27A. This section provides that an employee who knowingly and willfully makes a false representation regarding his physical condition at the time of hire, on which misrepresentation the employer relied, and that the employee knew or should have known it was unlikely he would be able to fulfill the job duties without incurring serious injury, is barred from receiving benefits. The insurer must show actual intent to deceive, a very high hurdle to clear. See Garbarino v. Vining Disposal, 12 Mass. Workers’ Comp. Rep. 173 (1999).

Eligibility for Old Age Benefits and Time Out of Work

Section 35E provides a vehicle for an insurer to defend or seek to discontinue payment of temporary incapacity benefits (secs. 34 and 35). It states, in pertinent part:

Any employee who is at least sixty-five years of age and has been out of the labor force for a period of at least two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under sections thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market.

The statute goes on to provide that the employee cannot rebut the presumption of benefit ineligibility by uncorroborated testimony of himself or family members. Case law, however, has rendered this provision easy to avoid, as it has been construed only to specific testimony that the employee “would have remained working” or words to that effect. Harman v. Harmon’s Paint & Wallpaper, 8 Mass. Workers’ Comp. Rep. 432 (1994); Tobin’s Case, 424 Mass. 250 (1997). The section therefore is of limited value, even where its elements are shown by the insurer.

Independent Intervening Cause

If an already-injured employee is so neglectful with regard to his work-related impairment, that he conducts himself in such a way as to further injure himself, the insurer may be able to discontinue payment of benefits. Kashian v. Wang Laboratories, 11Mass. Workers’ Comp. Rep. 72 (1997)(where “triggering activity is itself rash in the light of the claimant’s knowledge of her condition” insurer may have grounds for discontinuance). However, it is very hard for the insurer to prevail with this defense, because any continuing causal connection between the employee’s resultant disability and the work injury will render that disability compensable, where no such negligence on the part of the employee can be proved. Kashian, supra; Morgan v. Seaboard Products, 14 Mass. Workers’ Comp. Rep. 280 (2000)(non-work-related slip and fall aggravation of work-related impairment compensable where impartial medical evidence showed continuing causal connection of resultant condition to work injury, and slip and fall was not due to unreasonable activity on part of employee).

Sneezing, aggravating a work-related disability, is not an independent intervening cause cutting off causal connection to work. Id.

Suicide: Suicide is not such an “independent intervening cause” and is compensable, if it is shown that the employee’s “unsoundness of mind” was due to the effect of her work injury. Sec. 26A. See. Dube’s Case, 70 Mass. Workers’ Comp. Rep. 121 (2007)(simple “but for” causation applies).

BENEFITS

Weekly Benefits

Average Weekly Wage (AWW)

The amount of what a workers’ compensation claimant receives is based on what the employee (or deceased employee) earned in the 52 weeks prior to the date of the injury. Sec. 1(1). Where it is impossible to do such a calculation, due to the shortness of the employment, section 1(1) provides alternative methods for reaching a figure using comparable employees.

An important additional consideration in determining AWW is the concept of concurrent employment. The definition, again in sec. 1(1), is:

In case the injured employee is employed in the concurrent service of more than one insured employer or self insurer, his total earnings from the several insured employers and self insurers shall be considered in determining his average weekly wages.

Fundamental to concurrent employment is that employer’s being “insured” under the act. For example, self-employment, uninsured for workers’ compensation, may not be used to bolster average weekly wage, regardless of whether the work injury also prevents the employee from engaging in that occupation. The same is true of out-of-state employment. Letteney’s Case, 429 Mass. 280 (1999).

While the AWW on the date of injury governs the rate of compensation payable, see below, the act provides a floor and ceiling for the amount which the employee can recover in weekly benefits, regardless of her average weekly wage. The “Maximum weekly compensation rate” under sec. 1(10) equals the state average weekly wage (SAWW) calculated every October 1st. It is currently $1,181.28. The minimum under sec. 1(11) equals 20% of that figure, $236.26.

Rates of Benefit Payment

In the event of a combination of secs. 34 and 35, the total duration of benefits may not exceed 7 years. There are some exemptions to that rule, which are practically never used.
3.       Sec. 34A: Permanent and total: 67% of AWW. For the purposes of secs 34, 35 and 34A each dependent of the employee receives an extra $6 per week. Sec. 35A.
4.       Sec. 31: Death: 67% of AWW for 250 weeks to those “wholly dependent” on the deceased employee (usually spouse and minor children, who also are entitled to receive the same extra $6 per week). Payments then continue beyond 250 weeks, so long as dependent spouse is “not fully self-supporting.” This is difficult to prove, as sec. 38 bars the use of savings, insurance proceeds or any other source of benefits from the calculation. Wilson v. Western Mass. Electric Co., 20 Mass. Workers’ Comp. Rep. 323 (2006). “Dependents” are defined in sec. 32.
5.       Sec. 33 provides burial expenses up to $4000.

Permanent and Total Incapacity Benefits

The employee’s burden to prove entitlement to permanent and total incapacity benefits under sec. 34A includes proof of permanence, which must be in the form of expert medical opinion evidence. Where an employee has been collecting sec. 35 partial incapacity benefits, the employee’s proof must include showing a worsening of his medical condition. Foley’s Case, 358 Mass. 230 (1970). “Permanent” does not mean “eternal;” it means that the medical condition is expected to continue indefinitely. Yoffa v. Metropolitan Life Insurance, 304 Mass. 110 (1939). An insurer may challenge the employee’s status as being permanently and totally incapacitated from time to time, which complaint is usually based on medical evidence from the sec. 45 examination that shows the employee has improved and is only partially disabled.

Adjustments to Weekly Benefit Awards

Several provisions change the amount of a weekly benefits award. These are meant to increase the amount of the weekly benefits payable to the employee. However, the first, sec. 35B, can be used by either party to adjust benefits either up or down.

Subsequent Injury

An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.

The section is meant to address the obsolescence of benefits which are based on what can be old date of injury, when the employee suffers a recurrence of that injury after returning to work. Wadsworth’s Case, 461 Mass. 675 (2012). The section applies to two categories of “rates.” First is the employee’s AWW in the subsequent employment, after returning to work two months post-injury, which can be higher (in the employee’s favor) or lower (in the insurer’s favor). The section also applies to the statutory rates, which are those minimum and maximum amounts which can be received in accordance with secs. 1(10) and 1(11), as well as any other changes in benefit entitlements which can occur, such as changes in the duration of weekly benefit entitlement. These, too, can go in either parties’ favor.

Latency

Section 35C addresses weekly benefits in latency cases:

When there is a difference of five years or more between the date of injury and the initial date on which the injured worker or his survivor first became eligible for benefits under section thirty-one, thirty-four, thirty-four A, or section thirty-five, the applicable benefits shall be those in effect on the first date of eligibility for benefits.

For purposes of adjustments to compensation under sections thirty-four B and thirty-five F for employees subject to this section, the first date of eligibility for benefits rather than the date of injury shall be used for purposes of computing such supplemental benefits.

The dates of injury in these cases can be very remote (such as in asbestosis cases), and the statutory rates in effect when the employee is finally disabled as a result of these industrial diseases represent the actual losses, rather than basing the entitlement on the last date of employment where the exposure occurred, often decades in the past. See Letteney’s Case, 429 Mass. 280 (1999). Like concurrent employment wages, the date of eligibility wages must be from “insured” employment within the Commonwealth. Id.

Expectation of Natural Increase in Wages

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee's benefits under this section shall not be limited to the circumstances of the employee's particular employer or industry at the time of injury.

The employee’s expectations of advancement at the time of the injury are to be considered. Post-injury training and activities may not be used in making the assessment under this section. See Wadsworth, supra.

Award of Benefits Where Insurer Has Paid Nothing on Claim

Section 51A provides:

In any claim in which no compensation has been paid prior to the final decision on such claim, said final decision shall take into consideration the compensation provided by statute on the date of the decision, rather than the date of the injury

The section addresses situations where no benefits have been paid on a claim prior to being ordered by an administrative judge in her hearing decision, and are meant as an incentive to insurers accepting and settling disputed claims, as the statutory rates in effect on the date a hearing decision issues may be higher than those in effect on the date of injury. See Walker’s Case, 453 Mass. 358 (2009).

Cost of Living

Finally, cost of living increases under sec. 34B are automatically payable as of each October 1st to recipients of benefits under secs. 34A and 31, who have been receiving those benefits for more than two years based on the formula set out in the statute.

Interest

Section 50 provides:

Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums due from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision. Whenever such sums include weekly payments, interest shall be computed on each unpaid weekly payment.

The insurer must be attentive to the correct calculation of interest, which can be performed using the departmental interest calculator on the department’s web site, thereby eliminating the risk of a sec. 8(1) penalty for underpayment.

Recoupment

Recoupment of payments of weekly benefits is available per statute in two particular situations. Sec. 11D(1) provides first that an employee receiving benefits is required to comply with an insurer’s request, at six month intervals, for a report of all earnings she has had (including self-employment) in that preceding period. Pursuant to sec. 11D(2), when such earnings report indicates that the insurer has been overpaying the employee, it may unilaterally reduce payments or seek recoupment in a separate complaint, in the same manner as set out below.

Where a conference order of payment is later reversed or reduced by a hearing decision, sec. 11D(3) governs how the insurer may recoup the overpayments which it has made pursuant to the conference order:

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.

The insurer need not seek a judge’s approval to so reduce ongoing payments, where such are being made; it is only bound by the maximum reduction amount of 30%. Complaints for recoupment are handled in accordance with equitable principles described below.

Other recoupment issues can arise, which do not involve earning reports or the conference order/hearing decision relationship, such as overpayments made by mistake of the insurer. These recoupment matters, outside the scope of sec. 11D, are governed by equitable principles, which are found in Brown v. Highland House, 12 Mass. Workers’ Comp. Rep. 322 (1998)(factors include culpability of employee, negligence of insurer, ability to repay, hardship and amount of overpayments) .

Medical Benefits

Sec. 13 governs the rate of payment which medical providers must accept for treatment of workers’ compensation injuries, and establishes a health care services board which is responsible for all matters pertaining to medical providers and treatment which arise under the act.

Sec. 30 governs the insurer’s responsibility to “furnish to an injured employee adequate and reasonable health care services, and medicines if needed, together with the expenses necessarily incidental to such services.” The shorthand for medical treatment causally related to a work injury is “reasonable and necessary.” Treatment includes provision of artificial limbs, “or other mechanical appliance,” which will “promote [the employee’s] restoration to or continue him in industry….” See Stevens v. Northeastern University, 11 Mass. Workers’ Comp. Rep. 167 (1997).

Utilization Review, 452 C.M.R. 6.00 et seq.

Per 452 C.M.R. 6.02, medical treatment for a compensable work injury must now undergo Utilization Review (“UR”), by which a medical professional reviews the employee’s treatment in order to determine whether it is an “appropriate service,” one which is “medically necessary and reasonable, and based on objective, clinical findings.” The office of Health Policy within the department oversees the UR system. The process of UR is required for all medical treatment rendered after 12 weeks have elapsed after the work injury. 452 C.M.R. 6.01(a).

The insurer must issue to the employee a UR identification card, which contains the necessary information for the employee to contact the UR agent assigned to the employee. The insurer may perform the UR function in-house, or contract it out to an approved UR agent. Written determinations must be prepared by the UR agent within 2 business days of the request for treatment and receipt of all medical information necessary to conduct the review. When an employee receives an adverse determination letter from his UR agent denying proposed treatment (i.e., not in compliance with applicable treatment guidelines), he will also be informed of his right to appeal the determination by telephone and in writing, with the right to address the issue with a practitioner of the same school. The medical provider is also provided with the adverse determination, and may also pursue an appeal. An adverse appellate determination opens the door to the employee to file a claim in dispute resolution for such proposed treatment in the usual course.

Specific Injury/Loss of Function Benefits

Section 36 governs the payment of benefits attributable to the specific loss of a body part, sense, physical or mental functions, as well as bodily disfigurement and scarring. Purely scar-based disfigurement is compensable only if it is on the face, neck or hands. Corriveau v. Home Insurance Co., 43 Mass. App. Ct. 924 (1997). The section contains a schedule of values for each loss, based on the state average weekly wage on the date of injury, multiplied by a factor of X. Sec. 36 benefits are not payable until the employee has reached an end result, and the employee must also have lived for 30 days past the date of injury. The determination of losses under sec. 36 is the subject of expert medical opinion evidence, which is rendered in accordance with the AMA Guides to the Evaluation of Permanent Impairments.

Penalties

Every document requiring payment to the employee, issuing from or requiring approval of the division of dispute resolution, i.e. conference orders, decisions, agreements to pay, lump sum agreements, must be paid by the insurer within 14 days of its receipt of such document. Sec. 8(1). Failure to comply triggers a graduated schedule of penalties, starting at $200 for the initial failure to issue a check within 14 days to $10,000 if no payment is made within 90 days of receipt of the order/decision/agreement. Case law has strictly construed the penalty provisions of sec. 8(1), and there is no “good faith” exemption from their application. However, the payments subject to the penalties are only those “due an employee.” Payments to medical providers and attorneys fee are not within the scope of sec. 8(1). Diaz v. Western Bronze Co., 9 Mass. Workers’ Comp. Rep. 528 (1995).

Sec. 8(5) requires that an insurer pay a 20% penalty on any benefits later determined to be due, after it has unilaterally terminated or reduced or failed to make such payments, without fitting one of the exception listed in sec. 8(2). See Figueiredo’s Case, 49 Mass. App. Ct. 906 (2000).

Double Compensation for the Wilful Misconduct of the Employer

Section 28 is a hammer of a statute, which directly assesses doubled compensation liability upon the employer/insured, as well as the insurer. It provides, in pertinent part:

If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. In case the employer is insured, he shall repay to the insurer the extra compensation paid to the employee. If a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only.

The standard is set out in Armstrong’s Case, 19 Mass. App. Ct. 147 (1984) :

What constitutes "serious and wilful misconduct," sufficient to support double compensation under Section 28, has been discussed in many cases. See for examples of the more recent decisions (which amply refer to the earlier cases), Scaia's Case, 320 Mass. 432, 434-435 (1946), where, per Qua, J., it was held "that the evidence [concerning the inadequacies of a chain which broke] fell short of enough to warrant a finding of an easily perceptible danger coupled with the high degree of likelihood that harm would result which is required to carry a case across the line from negligence or gross negligence into the territory of wanton and reckless conduct"); O'Leary's Case, 367 Mass. 108, 114-117 (1975), dangerous work on steel beams with shear connectors attached, ordered [to be performed by foreman], could be found to be serious and wilful misconduct and involve conduct of a quasi criminal nature).

The more recent decision in Drumm’s Case, 74 Mass. App. Ct. 38 (2009) concluded that the employer's failure to prevent injury from a fall through an unguarded trap door in the floor did not reach the standard of a wanton and reckless disregard for safety that was quasi criminal in nature.

The doubling of compensation under sec. 28 even applies to payments made to medical providers, as sec. 30 medical benefits are “compensation.” Boardman’s Case, 365 Mass. 185 (1974).

Attorneys’ Fees

Attorneys’ fees are governed by sec. 13A, which provides the schedule of all such fees payable at the various stages of dispute resolution and settlement. Circular Letter No. 344 provides this year’s fees, automatically adjusted up from the amounts as set out in the statute, in accordance with cost of living increases. The attorney’s necessary expenses are to be paid with each fee.

Any claim not paid within 21 days results in the payment of an attorney’s fee of $1,102.38, which is reduced to half that amount if the employee’s attorney fails to appear at the conciliation without good cause. Sec. 13A(1).

A sec. 10A conference order of payment on an initial liability claim will include an attorney’s fee of $1,574.83. The administrative judge may increase or decrease the amount of the fee, “based on the complexity of the dispute or the effort expended by the attorney.” Sec. 13A(2). In any claim in which the issue is not one of initial liability, or insurer’s complaint to discontinue or reduce payments, the party whose last best offer presented at conciliation is adopted by the judge will prevail as to the payment of an attorney’ s fee; if the employee’s offer is adopted, an attorney’s fee of $787.42 is due. If the judge adopts the insurer’s offer is adopted, no fee is due. Secs. 13A(3) & 10(6).

Under sec. 13A(10), the insurer may transfer part of the payment of the attorney’s fee back to the employee. 22% of the weekly benefits paid within the first thirty days of the of an order to pay compensation may be deducted for this purpose. Spaniol’s Case, 466 Mass. 102 (2013). A retroactive award of benefits within that first thirty days is not subject to the deduction. Sullivan v. Boston University, 11 Mass. Workers’ Comp. Rep. 407 (1997).

Hearing fees are governed by sec. 13A(5), which states:

Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.

The amount of the fee specified is changed, pursuant to sec. 13A(10), every year by the increase in the cost-of living announced on October 1. The 2013 hearing fee is $5,511.91.

Determining whether the employee “prevails” at the hearing is an area which has been the subject of much litigation.
"[T]he employee falls within the typical 'prevailing party' formulation of one who succeeds on any significant litigation issue, achieving 'some of the benefit' sought in the controversy." Connolly's Case, 41 Mass. App. Ct. 35, 38 (1996), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978).

No fee is due, where liability is determined in the employee’s favor, but no benefits are found to be due. Gonzolez’s Case, 41 Mass. App. Ct. 39 (1996). Where only the employee appeals a conference order of payment, and the hearing decision awards no more than the conference order, the employee has not prevailed. On the other hand, where the insurer also appeals that conference order of payment, all of the benefits ordered are thereby put at risk, and a like hearing award would then constitute “prevailing” by virtue of retaining those benefits. Connolly’s Case, supra.

Finally, the employee’s attorney is entitled to a fee at the reviewing board, but only for prevailing against an insurer’s appeal of a hearing decision, in the amount of $1,574.83. Sec. 13A(6). No fee is due from the insurer when an employee appeals from a hearing decision, regardless of the result in the reviewing board. Sec. 13A(7).

Vocational Rehabilitation

The department’s office of education and vocational rehabilitation is responsible for administering vocational rehabilitation programs to injured employees, with a goal toward returning such employees to suitable gainful employment. Sec. 30E. The regulations pertinent to vocational rehabilitation are 452 C.M.R. 4.01 et seq. The office contacts and meet with such injured employees “it believes may require vocational rehabilitation services in order to return to suitable employment.” Sec. 30G. Failure of the employee to attend such meeting is grounds for suspension of benefits until a meeting is held. Sec. 8(2)(f). If the employee and insurer cannot agree upon a vocational rehabilitation plan, the office shall determine the necessity and feasibility of vocational rehabilitation services, and develop an appropriate plan. Sec. 30H. The employee’s refusal to undertake vocational rehabilitation services, where he has been deemed suitable, is ground for the insurer reducing benefit payments by 15%. The office’s determination of necessity and feasibility of vocational rehabilitation is only appealable to the director of the department.

THIRD PARTY LIABILITY AND LIENS

Liability of Person Other Than Insured

Section 15 provides, in pertinent part:

Where the injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the insured to pay damages in respect thereof, the employee shall be entitled, without election, to the compensation and other benefits provided under this chapter. Either the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do so unless compensation has been paid in accordance with sections seven, eight, ten A, eleven C, twelve or nineteen nor until seven months following the date of such injury. The sum recovered shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee, in which event the excess shall be retained by or paid to the employee.

As a practical matter, cases in which there is a recovery in Superior Court against a third party involve a complicated settlement between the employee and insurer. Allocations of sums recovered in the third party action are made for what are called “non-compensable” amounts. These are the categories of damages which are not available to the employee in the workers’ compensation case: The loss of consortium for the spouse and dependent children, Eisner v. Hertz Corp., 381 Mass. 127 (1980) , and pain and suffering of the employee. Curry v. Great American Insurance Co., 80 Mass. App. Ct. 592 (2011). The allocations to these categories must be approved by either an administrative law judge of the reviewing board, or a Justice of the Superior Court. The allocations must be deemed “fair” under the statute and above cases which construe this complex meeting of civil liability and workers’ compensation law. Also involved is a formula for the insurer’s paying its share of the contingent attorneys’ fees charged in attaining the civil damages. This is governed by the case of Hunter v. Midwest Coast Transport, 400 Mass. 779 (1987).

Liens Against Benefits

Section 46A governs liens which are filed with the division of dispute resolution, which must be paid out of the employee’s lump sum settlement, or other “nonperiodic compensation,” which would include a one-time retroactive award of weekly benefits in a hearing decision. Most frequently sec. 46A liens are filed by the Commonwealth’s division of medical assistance, or private medical insurance, which often pay for treatment later determined to be compensable under secs. 13 and 30. Also common are payments order for past due child support. As a practical matter, sec. 46A liens are negotiated down from face value, and they may be the subject of a settlement conference specifically addressing that issue before an administrative law judge of the reviewing board, when necessary.

ATTORNEYS

There is no workers’ compensation certification or specialty available for attorneys under Massachusetts law.

CLAIMS PROFESSIONALS

Claims professionals are not required to be licensed in Massachusetts in order to manage and adjust workers’ compensation claims. There is no licensing or continuing education requirement.

LITIGATION AND APPEAL

Beginning of the Claim

The insurer has 14 days to respond to the employer’s first report of injury, or the filing of a claim, which it does either by commencing payment or by notifying the department’s division of administration, the employer and, by certified mail, the employee, of its refusal to pay on Form 104. Such refusal must specify the ground upon which the insurer is relying in its non-acceptance. Failure to do either of these will result in the insurer’s loss of affirmative defenses once the claim goes to dispute resolution. However, the employee must still prove the essential elements of her claim. See sec. 7(1). No weekly benefits are paid during the first five days of disability, but those five days are included in the payments, once commenced.

Payment within the initial fourteen day period preserves the insurer’s right to make such payments for 180 days without prejudice. Thus, the insurer may terminate payments without filing a complaint with the division of dispute resolution. It need only give the division of administration and the employee seven days notice of it intent to terminate. See 8(2)e). The notice must include notification to the employee that he must file a claim to reinstate benefits within the four year statute of limitations under sec. 41. Such notice must also include all of the defenses upon which the insurer relies in refusing to continue payment, just like sec. 7(1) above. See sec. 8(1). The insurer may extend the 180 day without-prejudice period to up to one year by filing before expiration of the initial 180 days, so long as the employee agrees to it, and a conciliator, administrative judge or administrative law judge also approves. Such agreement of the parties must be set out on Form 105. See sec.8(6). If no payment is made within the initial fourteen days period, the without-prejudice option disappears.

The standard defenses raised in a refusal to pay are liability (the occurrence of an injury arising out of and in the course of employment), causal relationship between the claimed disability and the work, disability and extent thereof. Other defenses may be included, which can include such defenses as the special causal relationship standards of sec. 1(7A), statute of limitations, notice, late claim, jurisdiction and whatever other defenses the investigation of the claim presents (for example, independent contractor).

Claims which are Accepted or Paid Beyond the Applicable Without-Prejudice Period

Once the responsibility for paying a claim is established, the insurer may only modify or terminate payment of benefits by agreement of the employee, the approval of an administrative judge, or by filing a complaint with the division of dispute resolution. There are, however, nine exceptions to this rule, in which the insurer may unilaterally reduce or discontinue payments without approval of an administrative judge. These exceptions are listed in sec 8(2) :
(c) Where an employee has returned to work; however, there is a presumption that, if the employee then leaves work within 28 days of returning, the injury is the cause, so long as the employee gives the employer and insurer notice by certified mail within 21 days of leaving.
(d) Where a medical report from the treating doctor, or of the sec. 11A physician, states that the employee is capable of returning to work, or of performing a suitable job offered by the employer under sec. 35D, see below. The same 28 day rule applies as in (c).
(f) The department’s office of vocational rehabilitation authorizes the insurer to suspend or reduce benefits under sec. 30G.
(g) The benefits being paid have been exhausted pursuant to the applicable section.
(h) Failure of the employee to respond to the insurer’s written request for an earning report pursuant to sec. 11D.
(i) Failure of the employee to attend the insurer’s sec. 45 medical examination.
(j) The employee has been incarcerated pursuant to a felony or misdemeanor conviction. Note that commitment to a drug treatment program is not “incarceration” and benefits are still due. MacDonnell’s Case, 82 Mass. App. Ct. 196 (2012).
(k) Failure of the employee to apply for unemployment benefits under sec. 36B.
(l) Where the employee has died.

Independent Medical Examination

Pursuant to sec. 45, the insurer may have the employee examined by a physician of its choosing, any time after the occurrence of an alleged work injury, “and from time to time thereafter during the continuance of his disability….” The employee’s intentional failure to attend a sec. 45 examination is subject to a suspension of benefits until he does submit to the examination. The compensation due during such period of suspension may be forfeited. The employee is entitled to reimbursement of reasonable travel costs, and loss of wages related to attendance at the examination, if applicable.

When a Claim or Complaint Enters Dispute Resolution

The Division of Dispute Resolution is where employees’ claims, and insurer’s complaints to reduce or discontinue payments of benefits are handled. There are five stages to dispute resolution, each of which is outlined below.

Conciliation

An employee’s claim first must be presented to a conciliator, who will determine if the claim is accompanied by the required documentation and information for it to be presented to an administrative judge. See sec. 10. This normally means that the employee must have a medical report which establishes that the employee is suffering from a disabling injury, which was caused by the employee’s work with the insured employer. The referral to the conciliator occurs within fifteen days of the filing of the claim, which period may be extended by the conciliator. Sec. 10(2). The conciliator may request additional documentation prior to referring the claim to an administrative judge. If the parties reach agreement to adjust the claim, it will be memorialized in an Agreement to Pay Compensation, Form 113, which the conciliator can approve on behalf of the department. Sec. 19.

The insurer must pay a “referral fee” of 65% of the state average weekly wage whenever a conciliator sends a case forward to be heard by an administrative judge. Failure of the attorney for the insurer to appear at a scheduled conciliation results in a doubling of that fee. Sec. 10(5).

The parties must each file a last best offer with the conciliator in any claim in which liability is not an issue. Sec. 10(6). The administrative judge may accord these offers weight at the conference stage in determining the amount of the attorney’s fee. See secs. 13A(3) and (4).

Conference

The conference under sec. 10A is a non-evidentiary proceeding before an administrative judge, who will preside over the case throughout its life in dispute resolution, barring changes in geographic assignment, retirement or other unusual changes in circumstances. At the conference the attorneys present arguments as to why the judge should issue an order reflecting their position: The employee seeking an order of payment and the insurer seeking a denial or modification/discontinuance.

The parties file a joint Conference memorandum, which outlines what the case is about. The memorandum also specifies what medical issues are involved in the case, and the medical specialty of the sec. 11A impartial physician who will examine the employee prior to the hearing. The parties submit to the judge the medical records and reports for the impartial physician to review in preparing his medical report, as well as any hypothetical questions for him to answer.

No electronic recording or stenographic transcript of the conference proceeding is made.

Conference orders of payment are enforceable in the Superior Court under sec. 12. The fact that the insurer appeals the conference order to the evidentiary hearing has no effect on the insurer’s obligation to pay the conference order within 14 days of receiving such order. Sec. 8(1) penalties may be assessed on an insurer which does not comply with the 14 day requirement. See “Penalties” below.

If either party is dissatisfied with the conference order, that party may, within 14 days of the issuance of the conference order, appeal to the hearing, which is a “de novo” evidentiary proceeding in which all issues are heard anew. Sec. 10A(3).

Impartial Medical Examination

Once either party appeals from the conference order, the employee will be subject to the provisions of sec. 11A, which requires that she be examined by a department-appointed physician, except in cases fitting limited exceptions under the departmental regulations. The fee for the impartial medical examination may be waived in cases of the employee’s indigency, which is requested pursuant to a petition to the director of the department. Where both parties appeal from a conference order, the impartial fee is shared. In general, all claims and complaints which present a dispute over medical issues are subject to sec. 11A. The parties file their medical reports and records with the judge, and may also include written hypothetical questions for the impartial examiner to answer. The impartial examiner must, based on his examination of the employee and the medical documentation forwarded to him, opine on the causal relationship between the claimed work injury and the claimed disability, the extent of such disability, if any, and, where applicable, whether the employee has reached an end result and what permanent impairments or losses of function result from such injury. Sec. 11A(2).

The regulations, in the definition of “Disputes over Medical Issues” in 452 C.M.R. 1.02 provide that the parties may “opt out” of the impartial medical examination, by agreement, only where the medical dispute regards a past closed period of disability, the claim is original liability or for death, the claim only regards the extent of an accepted disability. The judge may also, on her own, determine that no impartial medical examination is necessary, so long as the reason for such decision is stated in the conference order.

The report of the impartial examiner is the only medical evidence that is presented to the judge at the hearing of the claim. However, the parties may request, or a judge may decide on his own, that additional medical evidence be considered, based on either the inadequacy of the sec. 11A report, or the complexity of medical issue involved in the claim. If a party makes this request upon receipt of the sec. 11A report, and prior to deposing the impartial physician, the judge must decide whether either factor warrants the allowance of additional medical evidence solely on the basis of the report. Brackett v. Modern Continental Const. Co., 19 Mass. Workers’ Comp. Rep. 11 (2005). Most commonly “inadequacy” is found where the report does not include an opinion on one of the issues which the doctor is charged with addressing, such as the applicable causal relationship standard or the extent of disability. See, e.g., Provost v. Truss Engineering, 24 Mass. Workers’ Comp. Rep. 127 (2010). As to “complexity of the medical issues,” this factor is highly discretionary with the judge, and is presently not well defined in the case law. See Dunham v. Western Mass. Hosp., 10 Mass. Workers’ Comp. Rep. 818 (1996)(complexity is in “eye of the beholder”).

Where neither parties moves for a declaration of inadequacy or complexity, there is no obligation for the judge to make that ruling, and the impartial medical opinion may not be challenged on appeal to the reviewing board. Viveiros’s Case, 53 Mass. App. Ct. 296 (2001).

If additional medical evidence is allowed at the hearing, that evidence stands on a equal footing with the impartial medical evidence, which includes both the impartial report and the deposition, if any, of the impartial doctor. The impartial medical evidence does not maintain any favored status in this event. See Coggin v. Mass. Parole Bd., 442 Mass. App. Ct. 584 (1997). The impartial examination and receipt of the medical report from that examination must take place at least seven days before the hearing before the judge. The deposition of the impartial physician will then take place after the hearing, where the lay testimony is taken. Where the impartial physician is unavailable to be deposed, the report must be struck, and the parties will be allowed to use their own medical evidence. 452 C.M.R. 1.12(5)(c).

Hearing

The sec. 11 hearing is where the employee, and other witnesses, if necessary, testify under oath as to all of the relevant facts regarding her injury. The employee has the burden of proving, more likely than not (predominance of the evidence), all of the elements which are necessary to proving a work injury and the disabling results thereof. The rules of evidence applicable in the constitutional courts of the Commonwealth apply in worker’s compensation hearings. The medical evidence is not presented through testimony at the hearing. The medical records and reports (where the medical case is opened up for additional medical evidence) are submitted with the proper certifications and accompanied with the physicians’ curriculum vitae, in lieu of live testimony. The judge writes a decision, in which she makes subsidiary findings of fact as to what evidence she finds credible, and upon which she relies, and reaches a conclusion of law as to what, if any, benefits the employee is entitled to. Failure of a judge to address every issue raised, or to accurately report which witnesses testified and documentary evidence in the record, will result in a recommittal for further findings, if the hearing decision is appealed by an aggrieved party. See, e.g., Spadola v. TGI Fridays, 26 Mass. Workers’ Comp. Rep. (2012).

A stenographic transcript of the hearing is produced. In the event of an appeal of the hearing decision to the reviewing board, this is the record of the evidence, along with all documents introduced and deposition transcripts.

Presumption of Work-Relatedness

Section 7A provides an evidentiary presumption for employees unable to testify as to the occurrence of a work injury:

In any claim for compensation where the employee has been killed or found dead at his place of employment or, in the absence of death, is physically or mentally unable to testify, and such testimonial incapacity is causally related to the injury, it shall be prima facie evidence that the employee was performing his regular duties on the day of injury or death and that the claim comes within the provisions of this chapter, that sufficient notice of the injury has been given and that the injury or death was not occasioned by the willful intention of the employee to injure or kill himself or another.

The presumption is rebuttable. Thus, if an insurer produces evidence sufficient to warrant a contrary conclusion on a fact set out in sec. 7A, a question of fact arises for an administrative judge to decide, and the judge must weigh the evidence and make credibility determinations in reaching a conclusion. For example, in Herbert v. Harvard University, 12 Mass. Workers’ Comp. Rep. 382 (1998), the employee died of a heart attack while on the telephone at work. The insurer came forward with evidence that the employee’s telephone conversation was simply casual, and not work-related, and that the heart attack was simply due to heart disease. The judge credited this evidence, thereby rebutting the presumption of a work-related death, and properly denied the claim. Id.

2. Sanctions for Practice before the Department

The prosecution or defense of any claim without reasonable grounds subjects the offender to sanctions which include the cost of the proceedings, and double back benefits due the employee, in the case of an insurer’s unreasonable defense of a claim. Sec. 14(1). Any representation made before the department by a litigant or attorney which is found to be fraudulent, including the knowing concealment of evidence, results in a monetary sanction of not less than six time the state average weekly wage, in addition to costs and attorneys’ fees and a referral of the offending party to the insurance fraud bureau. Sec. 14(2) Criminal sanctions are also available under sec. 14(3).

Reviewing Board

When a party is aggrieved of the result of the hearing, it may appeal to the reviewing board within 30 days of the issuance of the decision. The reviewing board in an appellate body governed by sec. 11C, and conducts no fact-finding. Credibility assessments made by the administrative judge are not subject to review. The parties are assigned a briefing schedule, and file briefs arguing their positions. A reviewing board panel of three administrative law judges will reverse the hearing decision only if it determines that the decision is beyond the scope of the judge’s authority, arbitrary or capricious or contrary to law. Where the decision contains error which the reviewing board deems appropriate for the administrative judge to address and correct, the reviewing board will recommit the case for such further proceedings. Further evidence may be taken if so directed by the reviewing board.

Reviewing board decisions are published, but the reviewing board can summarily affirm a hearing decision in an unpublished order. All decisions and unpublished summary dispositions of the reviewing board are subject to appeal directly to the Appeals Court, which conducts a legal review under the Administrative Procedures Act, G. L. c. 30A, sec. 14 (with the exception of subparagraph (e), that the decision is not supported by “substantial evidence”). Appeals from reviewing board decisions are docketed straight onto the primary three judge panel roster of that court; there is no intermediary step, either to the Superior Court (as with G.L. c. 30A appeals from other executive agencies), or to the Single Justice of the Appeals Court (the procedure for decades until an Appeals Court standing order implemented in 2004).

SETTLEMENT

A workers’ compensation claim may be settled only by way of a sec. 48 Lump Sum Agreement, paragraph (1) of which provides, in pertinent part:

Under the conditions and limitations specified in this chapter, the insurer and employee may, with the written consent of the employer if such employer is an experience modified insured, by an agreement pursuant to section nineteen, redeem any liability for compensation, in whole or in part, by the payment by the insurer of a lump sum amount. Where the employee is not represented by counsel, where the parties seek determination by an administrative judge or administrative law judge of the fair and reasonable amount to be paid out of the lump sum to discharge a lien cognizable under section forty-six A, or where any party requests that such agreement be approved by an administrative judge or administrative law judge prior to the filing of such agreement with the department, a lump sum agreement shall not have been perfected until and unless approved by an administrative judge or administrative law judge as being in the claimant's best interest.

As a practical matter, virtually all lump sum agreements go before a judge of the department for approval, even though a conciliator may approve an agreement as “complete” and therefore perfected. The lump sum conference is where the employee’s attorney presents the settlement to the judge as being in his client’s “best interest.” Sec. 46A liens, discussed below, are taken out of the settlement proceeds. .

There are two types of lump sum agreements. When the insurer accepts liability for the work injury, it redeems all weekly benefits past and future, pays all outstanding medical bills causally related to the injury, and continues to pay for all causally related medical treatment indefinitely. This future obligation can never be redeemed in a liability-accepted lump sum agreement. Vocation rehabilitation at the insurer’s expense is also available to the employee. The attorney’s fee for the liability settlement is 20% of the gross amount. Sec. 13A(7)(b) .

The other type of lump sum agreement is that in which the insurer does not accept liability for the subject work injury. Under this arrangement, the employee forever closes the case against the insurer; no further benefits of any kind are available to the employee, with a very rare exception regarding medical treatment which could not be foreseen at the time of settlement. The attorney’s fee for the no-liability settlement is 15% of the gross amount. Sec. 13A(7)(a) .

The experience-modified employer (virtually all private employers) must approve of the settlement by completing Form 116A. The settlement binds only the parties to the agreement; the settlement will not affect the rights of the employee against another insurer for a “separate and distinct injury resulting in an incapacity whether the injury precedes or arises subsequent to the date of injury.” Sec. 48(4). See Ford v. O’Connor Constructors, 23 Mass. Workers’ Comp. Rep. 145 (2009).

INSURANCE

Every private employer must obtain workers’ compensation insurance, or qualify as a self-insurer or member of a self-insurance group, in order to do business in the Commonwealth. Sec. 25A .

Section 63 governs workers’ compensation insurance policies in general. However, for those employers which cannot obtain a policy for workers’ compensation risk in the private market, section 65A provides for an assigned risk pool, through which the companies providing workers’ compensation policies by the commissioner of insurance to provide coverage to such employers.

Cancellation and Termination

Workers’ compensation insurance policies are subject to strict adherence to statutory cancellation and termination procedures. In Frost v. David C. Wells Ins. Agency, Inc., 14 Mass. App, Ct. 305 (1982), the Appeals Court interpreted G. L. c. 152, s. 63, which sets out the guidelines for terminating policies of workers' compensation insurance. "Workers' compensation insurance is compulsory, and noncompliance carries with it severe penalties." Id. at 307-308. Pursuant to sec. 63, the insurer must give notice to the Workers’ Compensation Rating and Inspection Bureau ten days prior to the effective date of cancellation or termination of the policy. The effect of non-compliance is that coverage continues despite expiration of the policy.

An insurer of a policy written pursuant to the sec. 65A the assigned risk pool, when intending to terminate the employer's coverage , must further comply precisely with the statutory notice requirements set out in G. L. c. 152, s. 65B, or the policy will continue in effect. The added requirement under sec. 65B is notice to the employer, after which the employer may file an objection with the department and be heard as to why such policy may not be so terminated. Further appeal from the department’s decision on the matter is taken to the superior court. Sec. 65B. The statutory notice requirements are applicable both to terminations of coverage during the policy term, as well as to a loss of coverage due to an insurer's decision not to renew coverage at the end of a policy term. See Cummings's Case, 52 Mass. App. Ct. 444, 448-450 (2001); Dearmon’s Case, 58 Mass. App. Ct. 913 (2003).

Multiple Insurer Cases

There are claims in which the employee alleges two or more work injuries to the same body part, against different insurers. These cases quite often involve repetitive stress injuries, in which the gradual effects of years of lifting or repetitive motion manifest in a period of disability, after which the employee returns to work, only to suffer the same disability from working some time later. This is the situation which the sec. 35B rate enhancement (noted above) covers, when the subsequent disability is found to be a recurrence of the earlier work injury. However, upon a finding that the subsequent disability is the result of new injury to that same body part, the “successive insurer rule” applies:

"The successive insurer rule provides that the insurer covering the risk at the time of the most recent injury that bears causal relation to the disability claimed must pay the entire compensation," Pilon's Case, supra, so long as the most recent injury contributes to the incapacity to the "slightest extent."(2) Ibid., quoting from Rock's Case, 323 Mass. 428, 429 (1948).

"An insurer takes the employee in the condition in which it finds him, and becomes bound to compensate him according to the provisions of the act for incapacity resulting from any compensable personal injury received during the period covered by the policy." Evans's Case, supra at 436. By placing the responsibility for compensation on the policy of the carrier at the time of a new injury, the successive insurer rule streamlines and expedites the provision of benefits to the injured employee and avoids the complexity of assessing causation among multiple injuries and apportioning liability across multiple carriers. See id. at 436-437.

Thus, the “successive insurer rule” stands as the opposite to the “major” cause provisions of sec. 1(7A), which involve non-work-related pre-existing injuries or disease. Once an injury is within the workers’ compensation system, any slight contribution from subsequent work is enough for a finding of a new injury.

When a claim is brought against an insurer, which has notice of another work injury involving the same body part, the insurer can invoke sec. 15A, and seek to have the insurer responsible for the other injury joined in the proceeding. Sec. 15A provides, in pertinent part:

If one or more claims are filed for an injury and two or more insurers, any one of which may be held to be liable to pay compensation therefor, agree that the injured employee would be entitled to receive such compensation but for the existence of a controversy as to which of said insurers is liable to pay the same, such one of said insurers as they may mutually agree upon or as may be selected by a single member of the board shall pay to the injured employee the compensation aforesaid, pending a final decision of the board as to the matter in controversy, and such decision shall require that the amount of compensation so paid shall be deducted from the award if made against another insurer and be paid by said other insurer to the insurer agreed upon or selected by the single member as aforesaid.

Joinder is governed by the regulation, 452 C.M.R. 1.20, and allows the party being joined 45 days to prepare to defend against the claim against it. Joinder of all insurers which might have responsibility for a disability is highly favored as serving the purposes of judicial economy and fairness.

Second Injury Fund/Workers’ Compensation Trust Fund

Claims involving a second injury, such as those discussed in the preceding section, present the paying insurer with an option for partial recovery/subrogation of the amounts expended. The Second Injury Fund (“the fund”), which is administrated by the Workers’ Compensation Trust Fund (“trust fund”), established by sec. 65, is the source for such reimbursement, which is governed by sec. 37. It is available for payments of death (sec. 31) and permanent and total incapacity (sec. 34A) benefits. The elements which must be shown to qualify for reimbursement from the fund are 1) existence of a prior physical impairment, 2) actual employer knowledge thereof, 3) the impairment was a likely hindrance to employment, 4) an accepted “second injury,” 5) the prior impairment combined with the second injury to cause a disability which was substantially greater than that which would have resulted without the prior impairment. If these elements are proved, the insurer may receive up to 75% reimbursement of the benefits paid, after payment of two years’ benefits. These provisions only apply to injuries occurring after the 1991 amendments to the act went into effect, on 12/23/1991. There is a two year statute of limitation on claims against the fund.

The trust fund also provides insurers with the following reimbursements under sec. 65(2) :
1) Cost of living adjustments to weekly compensation pursuant to sec. 34B;
2) sec. 35C latency claim adjustments;
3) vocational rehabilitation benefits pursuant to sec. 30H;
4) certain classes of compensation payments to veterans under secs. 26 and 37A.

The trust fund is also the insurer of last resort for employee injured while working for an employer which is illegally uninsured for workers’ compensation risk. These cases often present issues with regard to cancellation of insurance policies, which is stringently regulated under the act. The requirements for proper cancellation are contained in sec. 63, applicable to policies obtained on the open private market, and sec. 65B, applicable to assigned risk policies, which are written for employers, which otherwise are unable to obtain private insurance. The trust fund will normally join the cancelling insurance carrier into an uninsured claim against it.

Civil Action Against Uninsured Employer

An employee of an uninsured employer may also bring an action for damages directly against that employer, in which the common law defenses of contributory or comparative negligence, and assumption of risk are not available to the employer, which is held strictly liable for the damages attributable to the work-related injury. Sec. 66. See LaClair v. Silberline Mfg. Co., 379 Mass. 21 (1979). An employee may also bring an action in tort against a corporate officer who negligently fails to obtain workers' compensation coverage. See id. at 29. In such a case the measure of damages is the "amount which would have been obtained under G. L. c. 152 had work[ers'] compensation coverage been provided." Id. at 30. To the extent the employee has received compensation from the trust fund, the damages available in such an action would be those which are non-compensable, i.e. pain and suffering. An employee may not receive a double recovery. However, there is no requirement for the employee to exhaust his administrative remedy with the trust fund, prior to resorting to his sec. 66 option. See Chi Truong v. Chen Yah Wong, 55 Mas. App. Ct. 868 (2002).