(1) An employee of any uninsured employer shall be entitled, without election and through the Fund, to the weekly compensation and other medical and vocational rehabilitation benefits provided under MGL c. 152. The claimant may also proceed to enforce the liability of an uninsured employer under MGL c. 152, §§ 66 and 67. The Fund shall not be liable for any settlement or judgment in a personal injury action brought under MGL c. 152, §§ 66 and 67. The Fund shall not be deemed to be an insurer except as expressly provided by MGL c. 152 and 452 CMR 3.00.
(2) As a condition precedent to the filing of a claim against the Fund or to the joinder of the Fund by any party, the claimant or party shall obtain from the Office of Insurance a written certification that, according to the Department's records, the employer was not covered by a workers' compensation insurance policy on the date of the alleged injury. The director of the Office of Insurance or his designee shall sign the certification. When the claimant files the claim with the Office of Claims Administration, the claimant shall attach the certification and also submit a copy of the claim and certification to the Office of Legal Counsel.
(3) A representative of the Fund may controvert any claim filed against the Fund, raise any defense or assert any right granted to a party defendant or complainant under MGL c. 152 and 452 CMR 3.00, and file a complaint for modification or discontinuance based on any recognizable ground in the same manner as an insurer. The reasonable costs of representing the Fund may be paid out of the Fund. However, the Fund shall not be required to pay any filing fee required by MGL c. 152. The commissioner or his designee may represent the Fund in any administrative or judicial proceeding.
(4) A representative of the Fund may modify or terminate the payment of compensation only on the claimant's return to employment or death, the expiration of an agreement for the payment of compensation for a closed period, the execution of an agreement of modification or discontinuance, including an agreement redeeming future compensation, or the issuance of an order or decision of an administrative judge, the Reviewing Board, or any court of competent jurisdiction.
(5) A claimant filing a claim against the Fund shall notify the Commissioner or his designee, in writing, of any personal injury action brought by said claimant against the alleged uninsured employer or any other person. Within 60 calendar days of the receipt of any monies paid in settlement of any such action, or in satisfaction of a judgment in any such action, the claimant shall remit to the Fund an amount equal to the compensation paid by the Fund as of the date of such settlement or judgment, unless the Fund and the claimant agree on the remittance of a lesser amount. Any interest recovered in such action shall be apportioned between the claimant and the Fund, and any attorney's fee shall be paid by the Fund and claimant, in proportion to the amounts received by them in such settlement or judgment. Any future compensation payable by the Fund may be offset by the amount of the settlement or judgment which exceeds the amount of compensation paid by the Fund as of the date of such settlement or judgment, unless the Fund agrees to waive such offset.
(6) In any action brought by the Fund against an uninsured employer under MGL c. 152, § 65(8), the Fund may seek recovery of any costs incurred in the Fund's defense against a claim for compensation or in the prosecution of said action.
(7) For the purposes of MGL c. 152, § 65(2)(e), a claim against the Fund shall not lie when the claimant's injury appears to be covered under the provisions of MGL c. 152, § 18. When a claim has been filed under said section, there shall be no right of joinder against the Fund.
(8) For the purposes of MGL c. 152, § 65(2)(e), no public employer shall be considered to be uninsured.
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