Any claim not resolved at conciliation is assigned for a conference date. MGL c. 152, § 10A. These conferences, like conciliations, are informal, and not governed by the rules of evidence.
The conference is a proceeding before an administrative judge (AJ). The AJ learns about the case from presentations by both parties and the submission of documents, such as medical reports, wage statements, and affidavits from witnesses. Witnesses are not called. At the conference you would need to show:
- The injured worker was disabled;
- The injury or illness was work related; and
- That any disputed medical bills were for necessary treatment.
After the conference the administrative judge issues an order, either:
- Telling the insurer to pay benefits;
- Telling the insurer they are not required to pay benefits; or
- Telling the insurer that benefits currently being paid may be stopped.
The conference order can be appealed by either party on an Form 121 - Appeal of a Conference Order. You have 14 calendar days to appeal from the date of the order.
There is a $650 fee to appeal the conference order if the appeal is based on a medical issue. This fee may be waived if you can prove the injured worker cannot afford to pay the by filing an Form 136 - Affidavit of Indigence and Request for Waiver of Sec. 11A(2) Fees .
If either party appeals the conference order, a formal hearing before the same administrative judge will be scheduled.
Assignment to an administrative judge
- If the employee had a prior claim, the new claim will be assigned to the administrative judge who heard the previous matter. If for some reason an employee's subsequent claim is inadvertently assigned to another administrative judge, either party may request that the senior judge reassign the new claim to be heard by the original judge.
- If a party files a subsequent claim (or discontinuance complaint) while an original claim (or discontinuance complaint) is pending, the filing party may move to join the subsequent claim (or discontinuance complaint) to the original.
Practice Note
Joinder is allowed or denied at the discretion of the administrative judge. For the sake of judicial economy, administrative judges often allow joinder; however, if a motion to join would enlarge the scope of the proceedings, the Reviewing Board has held it is not an abuse of discretion for an administrative judge to deny such a motion. See Marco Polo Rodriguez v. Nat'l Surface Cleaning, 9 Mass. Workers' Comp. Rep. 199, 200 (1995).
Additional Resources
Conference memo - Form 140
At the outset of a conference, the parties sign a memorandum that they file with the administrative judge. This helps the judge know what the case is about. Both parties develop it. It is a 1-page, 2-sided department form called the Form 140 - Temporary Conference Memorandum Cover Sheet, which sets forth the information listed below:
- Claims for compensation and issues in dispute,
- Stipulations of fact,
- Exhibits to be marked for identification at hearing,
- Names of witnesses, with summary of their anticipated testimony,
- Medical records to be sent to impartial examiner accompanied by an itemized list of those records,
- Disclosure questions for the impartial (not to exceed three in number)
- Hypotheticals to be sent to impartial physician,
- Written objections to medicals submitted, stating reasons therefore,
- Name(s) of additional physician(s) for whom, at the time of hearing, it is anticipated either party will request a deposition, and
- Whether impartial examination is required.
With the administrative judge's permission, the parties may amend the memorandum at or before the hearing. Documents to be sent to the impartial physician must be submitted in duplicate and arranged in chronological order.
Practice Note
There are no ex parte communications. 452 CMR § 1.17. No party, or representative of a party, involved in a proceeding before an administrative judge (or reviewing board) may submit any information, evidence, argument, or advice, whether written or oral, regarding any matter at issue in such proceeding, unless such submission is part of the record, or made in the presence of all parties. When a party to a proceeding submits a letter or any writing to an administrative judge (or reviewing board), a copy shall be served by mail, or in hand, on counsel for each party or directly on each other party if not represented.
Medical Issues
At a conference where the employee's medical condition is an issue, the parties shall also identify to the administrative judge, as part of the required memorandum, the following:
- The medical issues in dispute,
- The medical specialty of the impartial physician,
- The names of three impartial physicians the parties have agreed on, in order of preference, and
- Estimated length of hearing.
Practice Note
Insurer defenses must either be raised at conference or waived. No other medical records will be allowed into evidence at hearing unless admitted by the administrative judge as "newly discovered evidence," or if a party files a motion to submit additional medicals on the grounds of the complexity or inadequacy of the impartial report.
Requirements for submission of video evidence
All videos must be approved by the administrative judge before being submitted to the file.
- Format – WMV or AVI format (WMV is preferred);
- File size – Files can be no larger than 150 MB or about 15 mins. each;
- Media – Files must be sent to the judge via link. CD – DVDs are NOT acceptable as they will not allow the file to be loaded into DMS.
Inquiries and investigations
In order to allow the administrative judge (AJ) to decide whether weekly compensation or payment of medical and hospital bills are due (MGL c. 152, § 10A(1); 452 CMR § 1.10(3)), the AJ makes necessary inquiries and investigations, and may:
- Require and receive reports of injury
- Signed statements of the employee and other witnesses
- Medical and hospital reports and records, and
- Such other oral and written matter
Practice Note
Administrative judges rarely, if ever, conduct their own investigations.
Stenographic transcript
No stenographic transcription or electronic recording is made of the conference proceedings under MGL c. 152, § 10A.
An administrative judge, who in the interest of justice, may require such transcription or recording, or, with the consent of all parties, may allow any party, at its own cost, to make a transcription or recording of the proceedings.
Conference order
After the conference has been completed, the administrative judge will issue an order within 7 days either awarding some, none, or all of the claimed benefit, or in the case of an insurer's discontinuation complaint, modifying, terminating, or denying the complaint. MGL c. 152, § 10A(2).
Appeal of a conference order
Any party aggrieved by an administrative judge's order has 14 days from the filing date of the order to appeal it.
If the parties have not opted out of the impartial examination (452 CMR § 1.11 (6-8)), each appellant must pay a $650 fee. This fee must either be sent with the appeal, or sent to the department within 10 days of filing the appeal.
Only a check for $650 payable to the "Commonwealth of Massachusetts" will suffice. Partial payments will be returned and the appeal will not be perfected. 452 CMR § 1.11 (1)(a).
Failure to perfect an appeal
There are several roadblocks to an appeal going forward set forth in the final paragraph of MGL c. 152, § 10A.
The most common (and least understood) failure to perfect occurs when either party makes a timely appeal of the conference order on an Form 121 - Appeal of Conference Order within the 14 days allowed, but within the next 10 days either fails to file the requisite fee, or fails to request a waiver of the fee for reasons of indigence on a Form 136 - Affidavit of Indigence and Request for Waiver of Sec. 11A(2) Fees.
The failure to perfect can be cured. If justice and equity require it, the director, within 1 year from the date of the administrative judge's order, can permit a hearing to take place.
There is no form for this petition. A letter to the director setting forth the reasons for the non-perfection will suffice. MGL c. 152, § 10A(3).
Practice Note
Petitions presented for late perfection, when less than 30 days overdue, stand an excellent chance of being granted by the director. However, attorneys must note that they risk malpractice if they do not request for late perfection or seek an indigency determination for their client. Attorneys who do not pay the full amount can get themselves in trouble. (MGL c. 152, § 11A(2), 452 CMR § 1.11(1)(a)).
Consider a case in which both sides appeal. One side pays the $650 fee and perfects its appeal. [This is often, but not always, the insurer.] The other side's counsel reads MGL c. 152, § 11A(2) to mean that it is adequate to send a check for $325 to opposing counsel, saying in effect, "Here's my half of the appeal fee." This is dangerous. A year goes by. Then, for whatever reason, the party who paid the appeal fee drops the appeal. The party who never offered the department $650 has no appeal and it is too late to perfect it. The second attorney fell into a serious malpractice trap. Why? The department credits the first party to put $650 on the table as having perfected an appeal. If there is a cross-appeal, the cross-appellant also has to submit $650. We note that the second $650 was submitted, perfect the appeal of the second one to offer $650, and we send the second check back. This may sound like a typical bureaucratic redundancy; however, the department cannot receive partial payments. 452 CMR § 1.11(1)(a).
Bottom line: attorneys who appeal their client's conference order need to ensure that they file the full $650 fee. They still must do this as the second appellant, even though the check is logged in and returned undeposited.
Waiver of fee for indigents
An injured worker claiming to be indigent must file a Form 136 - Affidavit Of Indigence And Request For Waiver Of § 11A(2) Fee within 10 days following the filing of the Form 121 - Appeal Of The Conference Order.
Any requests for waiver of the appeal fee must be supported with documentation AND an accompanying affidavit.
If the request is denied, the claimant can request that the director review the request within 10 days of the notice of the denial.
If indigence criteria are not met, or if factual inconsistencies exist between the findings of the director and the presented evidence, the appeal remains denied.