There are several impediments to an appeal going forward set forth in the final paragraph of MGL c. 152, § 10A. The most common (and least understood) failure to perfect occurs when either party makes a timely appeal of the conference order on an Form 121 - Appeal of Conference Order within the 14 days allowed, but within the next 10 days either fails to file the requisite fee, or fails to request a waiver of the fee for reasons of indigence on an Form 136 - Affidavit of Indigence and Request for Waiver of Sec. 11A(2) Fees . The failure to perfect can be cured. If justice and equity require it, the director, within 1 year from the date of the Administrative Judge's order, can permit a Hearing to take place. There is no form for this petition. A letter to the director setting forth the reasons for the non-perfection will suffice. MGL c. 152, § 10A(3).
Petitions presented for late perfection, when less than thirty days overdue, stand an excellent chance of being granted by the commissioner. However, attorneys must note that they risk malpractice if they do not request for late perfection or seek an indigency determination for their client. Attorneys who do not pay the full amount can get themselves in trouble. MGL c. 152, § 11A(2), 452 CMR 452 CMR 1.11: Hearings (§ 1.11(1)(a)). Consider a case in which both sides appeal. One side pays the $650 fee and perfects its appeal. [This is often, but not always, the insurer.] The other side's counsel reads MGL c. 152, § 11A(2) to mean that it is adequate to send a check for $225 to opposing counsel, saying in effect, "Here's my half of the appeal fee." This is dangerous. A year goes by. Then, for whatever reason, the party who paid the appeal fee drops the appeal. The party who never offered the department $650 has no appeal and it is too late to perfect it. The second attorney fell into a serious malpractice trap. Why? The department credits the first party to put $650 on the table as having perfected an appeal. If there is a cross-appeal, the cross-appellant has to submit $650, as well. We note that the second $650 was submitted, perfect the appeal of the second one to offer $650, and we send the second check back. This may sound like a typical bureaucratic redundancy; however, the department cannot receive partial payments. 452 CMR 452 CMR 1.11: Hearings (§ 1.11(1)(a)). Bottom line: attorneys who appeal their client's conference order need to ensure that they file the full $650 fee. They still must do this as the second appellant, even though the check is logged in and returned undeposited.