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Preparing for a conciliation

Tips on handling different aspects of workers' compensation cases at conciliation. This is the first step of the dispute resolution process at the Department of Industrial Accidents.
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Conciliation General Information

When you, or your attorney files a claim for benefits, or the insurer files a complaint to stop or modify your benefits, a conciliation is scheduled. A conciliation is an informal meeting between you, your attorney, the insurer's attorney, and a conciliator from the Department of Industrial Accidents (DIA). At the conciliation, the conciliator will attempt to get the parties to agree to a voluntary agreement. If a voluntary agreement can't be reached, the claim is referred to an administrative judge for a conference. 

You'll need to bring your most recent medical documentation with you (dated within the last 6 months).

It's recommended you hire an attorney for a conciliation.

If your case gets referred to an administrative judge for a conference, it is strongly advised you hire an attorney.

How to change the regional office hearing the conciliation

  • Conciliations are scheduled at a regional office closest to the employee's address that is on file with the Department of Industrial Accidents (DIA). If the employee's address is out-of-state, the conciliation is automatically scheduled for the Boston regional office.
  • The moving party may make a written request to the conciliation manager to change the location of the conciliation to another regional office which is in the best interest of the injured worker.
  • If the request is approved by the conciliation manager, all parties will be mailed a new notice indicating the date, time and new location of the conciliation within 2 weeks of the manager's receipt of the request.

Requests to change the location of a scheduled conciliation may be sent via regular mail, FAX or E-mail to:

Dele Edebiri
Conciliation Manager
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017

FAX: (617) 727-4366
E-Mail: Dele.Edebiri@dia.state.ma.us

Representation

A party to a conciliation may be represented by any person providing written authority to sign agreements as to compensation for that party.

  1. 1. Any person who is not a party (or who does not have such authority) may attend a conciliation only with the consent of all parties. 452 CMR 1.08(3).
  2. Although one Massachusetts appeals court case allows an attorney to send a lay advocate under the attorney's direction to a conciliation with the result that the attorney receives a full fee, such practice is not encouraged. Alliy v. Travelers Ins. Co., 39 Mass. App. Ct. 688, 659 N.E.2d 1219 (1996).
     
  3. No conciliator may be called to testify at any proceeding regarding any issue which arose in a conciliation. 452 CMR 1.08(4).

How to request a walk-in lump sum with a conciliator

The Workers' Compensation Act (MGL 152) was most recently revised in 1991. At that time, conciliators were given the authority to approve certain lump sum agreements.

If you wish to present a lump sum agreement to the Boston conciliation unit or any regional office for review and approval by a conciliator, the process is a simple one:

While no appointment is necessary, it may be best to call the regional office to schedule a lump sum conference.

Bring 3 copies of

The injured worker (and their attorney) and the insurer must be present at the lump sum conference.

The conciliation unit cannot review and approve lump sum agreements with undischarged liens (such as liens for child support, welfare, probate, etc.) or where the case is currently pending before an administrative judge.

Please be advised that the conciliation unit can only approve lump sum agreements for completeness as to form and cannot consider whether the agreement is "in the employees' best interest". MGL c. 152 §48

If you have any questions regarding the review or approval of a lump sum agreement by the conciliation unit, please contact:

Dele Edebiri
Conciliation Manager
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017

FAX: (617) 727-4366
E-Mail: Dele.Edebiri@dia.state.ma.us

Penalties

There are penalties for those who do not take a conscientious approach toward conciliation:

  1. Failure of any party to appear at conciliation with any information requested by the department bars the introduction of such information in any subsequent conference before an administrative judge, unless the party shows good cause why such information was not produced at the conciliation. 452 CMR 1.08(2).
  2. Ordinarily, a referral fee of 65% of the state average weekly wage (SAWW) is payable by the insurer to the department under MGL c.152, § 10(5) when a matter in dispute moves from conciliation to conference. [The SAWW as of October 1, 2016 is $1,291.74.]
  3. Where an insurer fails to appear for a scheduled conciliation, a referral fee of 130% of the SAWW is payable by the insurer to the department. 452 CMR 1.09(1).
  4. When the absence of an attorney for a party is not shown to be beyond the attorney's control, the attorney fee may be reduced.
  5. No attorney fees shall be due for any claim solely involving unpaid attorney fees or expenses for past services. MGL c. 152, § 10(1)(3).

Requirements for insurers

  1. Before a conciliator can refer an insurer's complaint to modify or discontinue compensation benefits to an administrative judge, the insurer must provide the employee, or the employee's designee, a copy of the wage schedule on which weekly benefits are being paid. 452 CMR 1.08(5).
     
  2. Alternatively, the insurer must furnish an affidavit signed by the insurer's representative stating that the insurer requested the wage schedule, but the insured either would not, or could not, produce it. 452 CMR 1.08(5). The injured worker, or their attorney, may waive such requirement.

Practice Note:

A delay in obtaining the wage schedule, or affidavit, does not generate an attorney fee where the matter is subsequently resolved at, or before, any continued conciliation date.

Withdrawal without prejudice

Without affecting the rights of any party under MGL c. 152, § 41, a conciliator may withdraw the claim, or complaint for discontinuance, or modification without prejudice. MGL c. 152, § 10(1); 452 CMR 1.08(6). This may occur when:

  1. An insurer unreasonably failed to provide a wage schedule, or affidavit.
  2. An insurer fails to provide relevant medical records at the time of conciliation.
  3. A party files a claim or complaint without substantial compliance with the requirements of  452 CMR 1.07(2).

Medical Records

The relevant medical records must accompany all claims in which liability is contested. At the time a claim is filed, the insurer must provide the injured worker, or their representative, with any records that contain any history of the injury for which treatment is being sought, or that contain opinions by medical personnel as to the nature and causation of the injury or condition being treated. 452 CMR 1.07(2).

Disposition

At any proceeding within the division of dispute resolution, the burden of going forward is on the injured worker seeking benefits, or on the insurer seeking modification or discontinuance of benefits. All parties must appear to present evidence in support of their positions.

Practice Note:

The burden of proof remains on the employee even when the disputed matter is a complaint for discontinuance or for modification of weekly benefits. Do not confuse the "burden of proof" with the "burden of going forward."

A conciliator who resolves a disputed claim reports it as "adjusted." (Please note conciliators may also approve lump sum settlements as "complete.") MGL c. 152, § 48(1).

If the claim is not adjusted, it proceeds to a conference before an administrative judge, who is assigned randomly by computer to hear it.

Practice Note

Except where events beyond the control of the department make such scheduling impracticable, the administrative judge assigned to any case referred to the division of dispute resolution shall retain exclusive jurisdiction over the matter. Any subsequent claim or complaint related to the alleged injury shall be assigned to the same administrative judge.

The conciliator shall write a recommendation which contains the following information for the administrative judge to review at conference. MGL c. 152, § 10(4) (a-c):

a. The conciliator's recommendation about whether weekly compensation (or other benefits) should or should not be paid;

b. Whether weekly compensation (or other benefits) should or should not be modified or terminated; or

c. If the information provided at the conciliation is insufficient to determine whether weekly compensation (or other benefits) should be paid, modified, or terminated.

Last best offer

Where original liability is not contested, the parties submit a "last best offer" of compensation. This is to be a reasonable offer based on the evidence provided at conciliation.

Although last best offers are not binding at conciliation, the administrative judge may accord them weight at conference. See MGL c. 152, § 13A  on attorney fees for injured workers.

The parties may revise their respective last best offers prior to the conference.

Request for a speedy or expedited conference

The director reviews the completed Form 131 - Request For Speedy Conference Because Of Hardship and Form 132 - Affidavit in Support of Employee's Request for Speedy Conference Because of Hardship . [Both forms must be submitted.] The hardship, when granted, moves the case to the top the lsit of cases awaiting assignment for conference dates before the first available administrative judge. However, if a judge "owns" the case from a previous filing, the conference must wait for an opening before that judge.

To be granted, the petition must be sufficiently compelling so that, were the other claimants to make the decision, they would allow the petitioner to move to the head of their line. [The reason - "I have no money, am out of work, and have medical bills" - in and of itself, does not entitle a petitioner to go ahead of other injured workers of substantially similar circumstances who are waiting their turn.]

Carefully documented petitions are the most likely to be advanced, e.g., those which include a letter of eviction or foreclosure, which reference minor children, elderly dependents in the petitioner's household, or outstanding court-ordered child support obligations going unpaid. Petitions drafted without apparent thought or care, especially when submitted by counsel, are not successful. MGL c. 23E, § 6(v).
 

Motion for Expedited Conference for Reasons other than Hardship

The senior judge accepts motions for expedited conferences for:

An administrative law judge or conciliator selected by the senior judge, presides over these motion sessions. If the motion is granted, a conference shall be held before an administrative judge within 14 days. MGL c. 23E, § 6(vii)

  • Alleged fraudulent behavior,
  • Illegal discontinuance of compensation,
  • Catastrophic injuries, or
  • Medical emergencies.

Rescheduling a conciliation

  • Conciliations are scheduled for 12 working days after the injured worker's claim is filed or the insurer's notice to discontinue or modify benefits is received at the Department Industrial Accidents.
     
  • Only the moving party may request to reschedule a conciliation.
     
  • All rescheduled conciliations shall be for 15 - 30 days into the future unless approved by the conciliator assigned to the case or by the conciliation manager.
     
  • Requests to reschedule the date of a conciliation may be made by directly contacting the assigned conciliator on the case.

Getting a § 19 petition approved

The conciliation unit in all Department of Industrial Accidents (DIA) offices can now approve Form 19 - § 19 Agreement, if the injured worker is represented by an attorney. If the injured worker has no attorney, only a judge can approve the agreement.

Agreements can be presented for approval to any regional office conciliation unit without a scheduled appointment.

If you should have any questions, contact any conciliator, or the conciliation unit at (617) 727-4900.

Understanding the Form 105 - Agreement to Extend the 180 Day Pay-Without-Prejudice period

  • Insurers are required to begin payment for lost wages or send a notice of denial to the injured worker within 14 days of receiving the Form 101 - Employer's First Report of Injury from the employer.
  • Insurers may pay workers' compensation benefits to injured workers for up to 180 days without making a final decision on the case. This is referred to as the "Pay Without Prejudice" period.
  • Insurers may increase the original 180-day "Payment Without Prejudice" period, with the injured worker's consent, for up to 1 year, by filing an Form 105 - Agreement To Extend 180 Day Payment-Without-Prejudice Period with the conciliation unit.
  • A conciliator can approve the agreement if it is determined that such an agreement is not detrimental to the employee's case.

Please mail the signed, original Form 105, with a copy of both the Form 101 and Form 103, to:

Sandra Perez
(617) 727-4900, Ext. 7368
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017

FAX: (617) 727-4366

Appealing a late fee

  • A referral fee of 65% of the state average weekly wage (SAWW) in the Commonwealth is paid by the insurer for all matters that are referred to the industrial accident board after conciliation, as governed by MGL c. 152 §10 (5).
  • In the event that the insurer failed to appear at a scheduled conciliation, and such failure was not beyond the control of the insurer, the referral fee is 130% of the SAWW.
  • An insurer may appeal the assessment of a referral fee by submitting a letter to the conciliation manager within 30 days of the issuance of the first bill, as governed by 452 CMR 1.09.
  • All referral fee appeals must include any relevant documentation.
  • A conciliator's assertion that an insurer was absent for a scheduled conciliation shall be final, and the administrative review by the conciliation manager is limited to whether the higher assessment was a mistake and, if not a mistake, whether the absence of the insurer was beyond its control.
  • The conciliation manager will make a finding within 30 days of the receipt of the appeal.
  • An insurer's obligation to pay a referral fee does not delay the forwarding of the claim on to a conference.

Referral Fee Appeals may be sent via mail, e-mail, or fax to:

Dele Edebiri
Conciliation Manager
Department of Industrial Accidents
1 Congress Street, Suite 100
Boston, MA 02114-2017
 

FAX: (617) 727-4366
Email: Dele.Edebiri@dia.state.ma.us

Notice of Change or Appearance of Counsel - Form 114

The Form 114 has several purposes:

  • To enter appearance for new attorney,
  • To notify the department of the discharge of an attorney by a claimant, and
  • For any party to notify the department of a change of address.
Date published: August 10, 2018

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