Decision  John J. Sullivan v. Rich A. Sullivan Construction

Date:	06/14/2006
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 020994-02, 020995-02
Location:	Boston

• Employee: John J. Sullivan
• Employer: Rich A. Sullivan Construction
• Insurer: Workers’ Compensation Trust Fund, One Beacon Insurance Co.

COSTIGAN, J. Can an assigned risk policy of workers’ compensation insurance under G. L. c. 152, § 65A,² be in effect for any period of its proposed term when a) the employer’s initial check for payment of the deposit premium was dishonored, and b) the insurer properly terminated the policy under the provisions of G. L. c. 152, § 65B?³ This is the question presented by the Trust Fund’s appeal of an administrative judge’s decision answering that question in the negative, and ordering it to pay benefits to an injured employee of the uninsured employer. The administrative judge concluded that no coverage had been effected, and that the employer was therefore uninsured for workers’ compensation, even though it had received a binder of assigned insurance with the insurer. For the reasons that follow, we affirm the judge’s decision.

¹  The employee did not participate in the hearing, as his claims against the Workers’ Compensation Trust Fund (Trust Fund) and One Beacon Insurance Company (the insurer) were resolved by lump sum settlements under G. L. c. 152, § 48, (Exs. 3 and 4), leaving the Trust Fund and the insurer to litigate the coverage issue before the administrative judge. (Dec. 2.)

²  General Laws c. 152, § 65A, provides, in pertinent part:

Any employer whose application for workers’ compensation insurance has been rejected or not accepted within five days by two insurers may appeal to the commissioner of insurance and if it shall appear that such employer has complied with or will comply substantially with all laws, orders, rules and regulations in force and effect relating to the welfare, health and safety of his employees, and shall not be in default of payment of any premium for such insurance, then the commissioner shall designate an insurer who shall forthwith, upon the receipt of the payment for the premium therefore, issue to such employer a policy of insurance contracting to pay the compensation provided for by this chapter.

³  General Laws c. 152, § 65B, as amended by St. 1991, c. 398, § 90A, provides, in pertinent part:

If, after the issuance of a policy under section sixty-five A, it shall appear that the employer to whom the policy was issued is not or has ceased to be entitled to such insurance, the insurer may cancel or otherwise terminate such policy in the manner provided in this chapter; provided, however, that any insurer desiring to cancel or otherwise terminate such a policy shall give notice in writing to the rating organization and the [insured] of its desire to cancel or terminate the same. Such cancellation or terminations shall be effective unless the employer, within ten days after the receipt of such notice, files with the department’s office of insurance objections thereof, and, if such objections are filed, the commissioner, or his designee shall hear and decide the case within a reasonable time thereafter. Further appeal of the decision of the department may be taken to the superior court for the county of Suffolk.