Decision

Decision  Glenn P. Thibeault v. Johnson Construction

Date: 06/02/2000
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 024465-95
Location: Boston
  • Employee: Glenn P. Thibeault
  • Employer: Johnson Construction
  • Insurer: Eastern Casualty Insurance Co.

MAZE-ROTHSTEIN, J. The underlying issues in this case have been previously addressed by the reviewing board and the administrative judge’s decision was summarily affirmed. (Summary disposition filed on December 22, 1997, regarding decision dated January 8, 1997 [hereinafter "Dec. I"]). While the matter was pending before the reviewing board, the employee filed claims with the administrative judge who heard the original case for §14 penalties against the insurer alleging a failure to comply with §25 and a claim pursuant to 452 Code Mass. Regs. § 7.04.2 These claims were denied following a §10A conference and the employee appealed to a hearing de novo. Prior to addressing the employee’s claim at the de novo hearing, the judge vacated her position to assume the duties of an administrative law judge with the reviewing board. The matter was reassigned to a different administrative judge who conducted the de novo hearing and issued a decision. (Dec. 2, dated November 17, 1988 [hereinafter "Dec. II."]) We affirm the latter decision.

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1 Administrative Law Judge Martine Carroll recused herself from this case as she had a prior involvement in this matter while serving in her former capacity as an administrative judge for the Department.

2 General Laws c. 152, §14, states in pertinent part:

(1) . . .[I]f any administrative judge or administrative law judge determines that any proceedings have been brought, prosecuted, or defended by an insurer without reasonable grounds:

(a) the whole cost of the proceedings shall be assessed upon the insurer; and

(b) if a subsequent order requires that additional compensation be paid, a penalty of double back benefits of such amount shall be paid by the insurer to the employee . . . .

If any administrative judge or administrative law judge determines that any proceedings have been brought or defended by an employee or counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whomever is responsible.

(2) If it is determined that in any proceeding within the division of dispute resolution, a party, including an attorney or expert medical witness acting on behalf of an employee or insurer, concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly used perjured testimony or false evidence, knowingly made a false statement of fact or law, participated in the creation or presentation of evidence which he knows to be false, or otherwise engaged in conduct that such party knew to be illegal or fraudulent . . . the party shall be assessed, in addition to the whole costs of such proceedings and attorney’s fees, a penalty payable to the aggrieved insurer or employee, in an amount not less than the average weekly wage in the commonwealth multiplied by six.

General Laws c. 152, §25, reads as follows:

If an insured person who has complied with the rules, regulations and demands of the insurer is required by a judgment of the court to pay to an employee any damages on account of personal injury sustained by such employee during the period covered by insurance, the insurer shall pay to the insured the full amount of such judgment and the cost assessed therewith if the insured shall have given the insurer written notice of the bringing of the action in which the judgment was recovered and an opportunity to appear and defend the same.

452 Code Mass. Regs. §7.04 reads in pertinent part as follows:

7.04: Questionable Claims Handling Techniques/Patterns of Unreasonably Controverting Claims

(1) Pursuant to M.G.L. c. 23E, § 3(b)(8), the Department's Division of Administration shall receive for investigation, on a form prescribed by the Department, written allegations of questionable claims handling techniques or patterns of unreasonably controverting claims by insurers, group self-insurers, self-insurers, third party administrators, employers, or other entities, including agents and brokers, handling workers' compensation claims.

(2) The Division of Administration shall conduct an investigation, and shall provide the party against whom the allegation is made an opportunity to respond in writing to the written allegations within 30 days. The findings of said investigation shall be reported to the Commissioner of Insurance, to the party making the allegation, and to the respondent party . . . .

(3) Questionable claims handling techniques or patterns of unreasonably controverting claims shall include, but not be limited to, techniques or patterns of practice which involve the following:

(a) misrepresenting pertinent facts or policy provisions relating to coverage, entitlement to benefits under M.G.L. c. 152, or any other material facts or provisions pursuant to M.G.L. c. 152, or for any other purpose;

(b) failing to adopt and utilize reasonable standards for the handling of claims consistent with the provisions of M.G.L. c. 152, §7;

(c) failing to effectuate prompt, fair, and equitable adjustments of claims in which liability, causal relationship, and/or extent of disability have become reasonably clear;

(d) failing to make payment or to provide the written reason(s) for not doing so to a provider, as defined in 452 CMR 6.02, who has submitted a request for reimbursement for payment in accordance with the provisions of M.G.L. c. 152, §§13 and 30 and regulations promulgated thereunder within 45 days of receipt of the request for reimbursement;

(e) prosecuting complaints or defending against claims without reasonable grounds, including, but not limited to, engaging in practices found violative of M.G.L. c. 152, §14;

(f) delaying or prolonging the processing or payment of requests for reimbursement, including, but not limited to, engaging in repetitive, unnecessary, or otherwise unreasonable requests for the submission of reimbursement or medical information;

                                                                   . . . .

(h) failing to undertake utilization review pursuant to 452 CMR 6.00 et seq., including, but not limited to, failing to:

1. become a Department-approved utilization review agent or, alternatively, contract with a Department-approved utilization review agent;

2. maintain and utilize adequate standards and procedures to monitor and coordinate utilization review practices; or

3. comply with the reporting requirements of 452 CMR 6.05(2);

(i) failing to conform with the time frames and notice requirements set forth in M.G.L. c. 152 and regulations promulgated thereunder;

(j) misrepresenting facts or law to an experienced modified insured concerning settlement of a claim in order to obtain the insured's written consent, or otherwise failing to obtain such consent when so required by M.G.L. c. 152;

(k) failing to submit a revised statistical unit report to the appropriate rating bureau within 60 days of a finding of non-compensability, a recovery of previously paid workers' compensation benefits from a third party, or reimbursements from the Workers' Compensation Trust Fund for payments made pursuant to M.G.L. c. 152, § 65(2).

(l) failing to pay, in a timely manner, referral fees due under the provisions of M.G.L. c. 152, § 10(5).

(4) The submission of evidence of any questionable claims handling techniques or patterns of unreasonably controverting claims, including but not limited to, the techniques or patterns of practice set out in 452 CMR 7.04(3), may be sufficient to support a finding by the Division of Administration that an insurer, group self-insurer, third party administrator, or agent or broker has, or is, engaging in questionable claims handling techniques or patterns of unreasonably controverting claims. The Division of Administration shall refer its findings to the Commissioner of Insurance to undertake such enforcement, license revocation, and/or other actions as may be applicable by law.

(5) The submission of evidence of any questionable claims handling techniques or patterns of unreasonably controverting claims, including but not limited to, the techniques or patterns of practice set out in 452 CMR 7.04(3), may be sufficient to support a finding by the Division of Administration that a self-insurer, vocational rehabilitation provider, or utilization review agent has, or is, engaging in questionable claims handling techniques or patterns of unreasonably controverting claims. The Division of Administration shall refer its findings to the Commissioner of the Department to undertake such enforcement, fine, license revocation, and/or other actions as may be applicable by law.

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