A petition is returned for a substantive defect usually because the answer to paragraph 14 is not correct: In the event the plaintiff/employee establishes entitlement to future MGL c. 152 compensation payments, set out the agreement between the plaintiff/employee and the workers' compensation insurer with regard to reimbursement of the employee's proportionate share of counsel fees and expenses as provided by Hunter v. Midwest Coast Transport, Inc., 400 Mass. 779 (1987).

(1) Although a claim is closed on an insurer's books and archived, and although an employee is through treating and back to work, the employee's attorney cannot "close" the workers' compensation case by asserting in a petition that the employee will never seek benefits on a particular claim. Absent an approved lump sum, an attorney may not foreclose the employee's future ability to receive benefits. Even with a lump sum, medical and rehabilitation benefits may remain open if it is an accepted case.

(2) Generally speaking, the only times "not applicable" is an appropriate answer comes when the employee is deceased, or where a lump sum occurred on an "unaccepted basis," which precludes any reason for the employee to expect further benefits to be paid.

(3) Lump sums settled on an "accepted" basis cause some problems because even practiced attorneys sometimes miscalculate the effect of the "excess" on the payment of their client's causally connected medical benefit. Routinely such are paid at 100 percent of the approved rate by the workers' compensation insurer; however, as the workers' compensation insurer is entitled to get a dollar back from a third-party insurer for each dollar it has paid out on the injured worker's medical benefits, under Hunter the employee may find the insurer will pay only 33.3 percent of the medical benefit (and the employee will pay 66.6 percent) until the "excess" recovery is exhausted and the insurer resumes paying 100 percent of the causally connected medical bills. This needs to be written into the agreement, and absent it the petition will not be approved. (Actual percentages may vary.)