|Organization:||Department of Industrial Accidents|
|Docket Number:||DIA Board No. 037100-92|
- Employee: Peter Zinkevich (deceased)
- Plaintiff: Delores Zinkevich 
- Insurer: Insurance Company of North America
COSTIGAN, J. In 19952 the employee accepted the insurer’s oral offer to settle his workers’ compensation case for $50,000. The proposed lump sum settlement was to be presented to an administrative judge on February 23, 1995, for approval pursuant to G. L. c. 152, § 48.3 The employee died on February 22, 1995.4 Neither the employee nor the insurer had signed a lump sum settlement agreement prior to the employee’s death. When the insurer learned of the employee’s death, it informed his attorney that it would not honor its agreement to settle. Over the ensuing seven years, the administrator of the employee’s estate sought to enforce the oral agreement in both this department and the superior court. See G. L. c. 152, § 12. This tortuous procedural trek is summarized in the "Agreed Statement of Facts," executed by the parties on April 8, 2002, on which this case was tried before the administrative judge whose decision we review:
1. On or about July 29, 1992, Peter Zinkevich (hereinafter referred to as "the Employee") sustained an industrial accident resulting in a fractured calcaneus while in the employ of Woolworth Corporation (the Employer). Additionally, on September 11, 1993, the Employee’s leg gave way and he fell, injuring his shoulder.
2. Insurance Company of North America ("INA"), thereafter Century Insurance Company (hereinafter referred to as "the Insurer"), subsequently accepted the employee’s injuries as compensable and commenced payment of weekly disability benefits.
3. In 1995, the Employee’s counsel, Constance Morrison, Esquire, reached an oral agreement with the Insurer redeeming liability for the Employee’s injuries in the amount of $50,000.00.
4. A Section 10A conference was scheduled for February 23, 1995. . . .
5. The Employer signed Form 116A, consenting to the settlement amount of $50,000.00. . . .
6. On the evening of February 22, 1995, the date before the scheduled conference, the Employee became ill and died. . . .
7. Attorney Morrison prepared lump sum papers . . . which were unexecuted and unfiled at the time of Mr. Zinkevich’s death and had not been transmitted to the Insurer.
8. When apprised of Mr. Zinkevich’s death, Defense Counsel Jennifer Hylemon expressed inability to proceed on a lump sum hearing. Subsequently, the Insurer denied liability for the lump sum and the experience-modified Employer rescinded its consent to the lump sum settlement.
9. The matter was subsequently reassigned before Administrative Law Judge William A. Pickett on April 5, 1996.
10. Administrative Law Judge Pickett declined to approve the settlement for the reasons set out in his letter of April 25, 1996. . . . ["Since the papers presented to me on April 5, 1996 have no signature, I assumed the agreement to lump sum was all oral . . . The Department of Industrial Accidents lacks authority to enforce its order or decisions. While it may approve or disapprove proposed lump sum agreements, the Department (of which the Reviewing Board is a part) has no recourse authority [sic] to determine whether or not a binding oral contract for lump sum has been entered into this case [sic]. In my view, there is no administrative remedy within the Department of Industrial Accidents. So ordered."]
11. Attorney Morrison then filed suit against Century in Worcester Superior Court. Century’s Motion to Dismiss was allowed and judgment entered in its favor on December 8, 1997.5
12. Subsequently, Attorney Morrison sought to have the matter heard by the Reviewing Board of the Department of Industrial Accidents . . . but was informed by Joseph W. Jennings, III., then Senior Judge, that the Reviewing Board had no jurisdiction over the issue involved. . . .
13. A claim was subsequently filed with the Department of Industrial Accidents. . . .
14. That claim was denied at § 10A conference. . . .
15. The denial of the claim was appealed and scheduled for hearing.
16. The claim was amended prior to hearing to add a claim for benefits under M. G. L. Chapter 152, Section 31. The amended claim and the claim to enforce lump sum were withdrawn when reached for Section 11 hearing on October 14, 1999.
17. Another claim was filed on or about September 8, 2000, seeking approval of the settlement agreement. . . .
18. That claim was conferenced on June 25, 2001 following which a DENIAL OF PAYMENT was filed on June 26, 2001. . . .
19. That Denial of Payment was appealed in a timely fashion. . . .
(Joint Exhibit 1.) The administrative judge found the facts as agreed by the parties. (Dec. 4.)