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452 CMR 1.00: Adjudicatory Rules of the Industrial Accident board

Date: 01/27/2017
Organization: Department of Industrial Accidents
Regulatory Authority: MGL c. 152
Official Version: Published by the Massachusetts Register

This is an unofficial version of Commonwealth regulations and is posted here for the convenience of the public. It is not an official statement of the regulations.

1.01: Scope and Authority

452 CMR 1.00 is promulgated pursuant to MGL c. 152, § 5 for the purpose of carrying out the provisions of MGL c. 152, except where it would violate justice or equity to do so, 452 CMR 1.00 shall apply to all claims and complaints before the Industrial Accident Board and the Industrial Accident Reviewing Board of the Department of Industrial Accidents, irrespective of the date of injury, except for those claims and complaints concerning attorney's fees and expenses set forth in 452 CMR 1.19(1) through (7) 452 CMR 1.19: Payment Of Attorney's Fees , which shall apply only to claims and complaints regarding injuries arising on or after November 1, 1986.

1.02: Definitions

Actual Employment as used in MGL c. 152 and 452 CMR 1.00 Adjudicatory Rules shall include any job for which the employee receives earnings.

Additional Compensation as used in MGL c 152, § 8(5) , shall mean compensation due pursuant to an order or decision finding that prior compensation was illegally discontinued.

All Payments Due an Employee as used in MGL c. 152, § 8(1) , shall mean, in regard to past due or retroactive benefits only, the sum certain payable to the employee after the determination of the amount due a lien holder in satisfaction of any lien filed pursuant to MGL 152, § 46A . Unless otherwise agreed, the parties shall make reasonable efforts to expedite the determination of the amount due the MGL c. 152,  § 46A lien holder, but in no event shall payment be delayed beyond 60 days of the insurer's receipt of the order, decision, arbitrator's decision, approved lump sum or other agreement indicating that such payments are required to be made. All other payments due an employee shall be made by the insurer within the timeframe set forth in MGL c. 152, § 8(1).

Amount Payable to the Employee Within the First Month from the Date of the Voluntary Payment, Order or Decision as used in MGL c. 152, § 13A(10), shall mean any future benefits  pursuant to MGL c. 152 due the employee for the first 30 days subsequent to the date of execution of a voluntary payment or the issuance of an order or decision.

Cash Award as used in MGL 152, § 13A(10), shall mean any benefits payable under MGL c. 152, § 36 or MGL c. 152, § 36A and any weekly benefits payable under MGL c. 152 of an amount that exceeds the weekly amount being paid the employee for the week immediately prior to the date of the voluntary payment, order or decision.

Disputes Over Medical Issues , as used in MGL c. 152, § 11A(2) , shall not include any case in which:

(a) the parties disagree solely regarding the entitlement to weekly benefits concerning a specific period or periods of disability, or death, which occurred prior to the hearing scheduled pursuant to MGL c. 152, § 11;

(b) the parties disagree regarding the liability of the named insurer for any claimed injury; provided, however, that the parties agree that no impartial physician's report is required;

(c) the parties agree upon both the nature of the impairment and the causal relationship between the impairment and the employment; provided, however, that the parties agree that no impartial physician's report is required.

(d) based upon the information submitted at a Conference pursuant to MGL c. 152, § 10A, the administrative judge determines that there is no dispute over medical issues. The judge's determination, and reasons therefor, shall be stated in the MGL c. 152, § 10A Conference order.

Factual Basis for an Insurer's Refusal to Pay Compensation as used in MGL c. 152, § 7 and MGL c. 152, § 8, shall be a short and plain statement of the specific facts supporting the grounds for said refusal.

Filed as used on MGL c. 152, § 10A and MGL c. 152, § 11C as used in 452 CMR 1.11(1) 452 CMR 1.11: Hearings 452 CMR 1.15(1) and 452 CMR 1.15: Reviewing Board shall mean placement of the appeal in the mail to the Department postmarked, or sent electronically, no later than midnight on the 14th day when appealing a conference order under MGL c. 152, § 10A, and the 30th day when appealing the decision of an administrative judge pursuant to MGL c. 452, § 11C. Unless otherwise indicated, where the words "file" or "filed" appear, they shall mean through the placement in the email or electronic transmittal to the Department.

Insurer as used in MGL c. 152, § 45 shall include the Workers' Compensation Trust Fund. 

Interest as used in as used in MGL c. 152, § 50, shall be calculated using the Department-provided formula available on its website. The parties may utilize other formulas but when a discrepancy exists the amount of interest in the Department formula will prevail for all purposes.

Mid-term Notice of Cancellation as used in MGL c. 152, § 55A, shall mean any notice of policy discontinuance during the term of the policy where such discontinuance is initiated by the insurer, and shall not include discontinuances  initiated by insured's.

Necessary Expenses as used in MGL c. 152, § 13A, shall mean all reasonable out-of-pocket costs, as the Department may set, to a claimant's attorney incurred by said attorney in prosecuting a claim for benefits or contesting a complaint filed by the insurer, including the cost of obtaining relevant medical records, doctor's reports, private investigator fees, constable charges, expert witness charges, interpreter fees and scientific testing costs, but specifically excluding telephone expenses, parking fees, postage, stationery, photocopies, meals, automobile expenses, and ordinary legal office overhead. Filing fees and impartial physician deposition costs required by MGL c. 152, § 11A, which are paid by claimant's counsel, shall not be submitted as necessary expenses but shall be reimbursable directly from the insurer against whom the claimant prevails at hearing.

Toll as used in MGL c. 152, § 41, shall mean permanently satisfies.

1.03: Employer's Report of Injury

Reserved

1.04: Insurer's Notice of Refusal to Pay Compensation

Subject to the provisions of  MGL c. 152, § 7(1)  and MGL c. 152, § 8(1), as to newly discovered evidence, no grounds for refusal to pay compensation shall be allowed as a defense unless the insurer's notice of refusal contains a statement of the factual basis supporting such grounds. No ground or factual basis sought to be raised by an insurer on newly discovered evidence shall be allowed as a defense unless the insurer reports each such ground or factual basis to the injured employee and the Department not less than five working days before any conference or hearing, provided that if such evidence is not in fact discovered until a time within such five day period, a continuance may be granted at the judge's discretion if requested by the insurer at the conference or hearing. 

1.05: Payment of Compensation

(1) When an insurer makes payment of benefits in a timely fashion it shall file a memorandum of payment on a form prescribed by the Department within 30 calendar days of such insurer's receipt of an employer's first report or an initial written claim for weekly benefits on a form prescribed by the Department, whichever is received first.

(2) When an insurer and an injured employee reach an agreement in accordance with the provisions of MGL c. 152, § 19, a memorandum thereof on a form prescribed by the Department, signed by the parties, shall be filed with the Department within seven days thereof.

(3) Orders, decisions, arbitrator's decisions and agreements for compensation are not divisible and failure to comply with all relevant terms thereof in a timely fashion shall, where applicable, constitute a violation under MGL c. 152, § 8(1).

1.06: Modification or Discontinuance of Compensation

(1) Whenever the insurer or insured deems the employee to have refused to submit to, or in some way to have obstructed, a medical examination scheduled pursuant to MGL c.152, § 45 or MGL c. 152, § 11A , it shall be entitled to suspend weekly benefits without an agreement, order, or decision. Such a suspension of weekly compensation shall take effect only after the Department is notified on a form prescribed by the Department and when the insurer sends a written notice of the suspension to the employee and the employee's legal counsel, if any, by certified mail with a copy of the notice also sent to the department. Suspension cannot be commenced until the date the notice is mailed. Such notice shall state the grounds for the suspension and, except as to suspensions pursuant to MGL c. 152, § 11A, shall contain notification of the re-examination date. The re-examination shall be scheduled to occur not less than seven days nor more than 21 days from the date of notice of the suspension. Such notice shall also instruct the employee that attendance at, and cooperation with, the re-examination shall result in reinstatement of weekly benefits and payment of benefits withheld during the period of such suspension.

Should the claimant fail to appear at the re-examination, or in any way obstruct, or fail to cooperate at such re-examination, the suspension shall continue until an administrative judge makes a determination whether benefits should be forfeited.

(2) No suspension of benefits shall be allowed on the basis of an employee's failure to meet with a vocational rehabilitative specialist within the Department pursuant to MGL c. 152, § 45 without the written authorization of the Office of Education and Vocational Rehabilitation.

(3) An insurer seeking to discontinue benefits in accordance with MGL c. 152, § 35E shall file a complaint in accordance with the provisions of MGL c. 152, § 7G. An insurer may not unilaterally discontinue benefits under MGL c. 152, § 35E.

(4) An insurer, without the requirement of an order under MGL c. 152, § 10A, may suspend or take credit for any compensation due to the extent of any excess retained by or paid to an employee in connection with a settlement approved in accordance with the provisions of MGL c. 152, § 15.

1.07: Claims and Complaints

(1) A claim for compensation may be filed by any person, including an employee, dependent, physician, hospital or other health care provider, who believes that benefits are due under M.G.L. c. 152.

(2) Pursuant to the provisions of M.G.L. c. 152, § 7G, the following documentation must be attached to a claim for benefits, or complaint for modification or discontinuance of benefits before it will be processed by the Office of Claims Administration:

(a) Any claim for a recalculation of the compensation rate under M.G.L. c. 152, § 1 shall be accompanied by one or more of the following:

  1. an affidavit attesting to the reasons why the weekly rate is incorrect;
  2. a wage schedule of the employee or an affidavit attesting that a demand for a wage schedule was upon the employer, concurrent employer and/or insurer without success, together with a brief recitation of why the claimant alleges the average wage is inaccurate and why the wage schedule is needed;
  3. all relevant pay stubs;
  4. a W-2 tax form or any of the above documents for a comparable worker where pursuant to M.G.L. c. 152, § 1(l), such information is applicable. Where concurrent employment is at issue, documentation as listed above shall be furnished for all concurrent employers, together with an affidavit attesting to the name of the concurrent employer and its insurer during the relevant period of concurrent employment.

(b) Claims for penalties under M.G.L. c. 152, § 8(1) shall be accompanied by a copy of the order, decision, arbitrator's decision, approved lump sum or other agreement or other relevant documents(s) with which it is alleged the insurer has failed to comply, together with an affidavit signed by the claimant or the claimant's attorney attesting to the date payment was due, the date, if any, on which payment was made, and the amount of the penalty the claimant is owed.

(c) Claims filed pursuant to M.G.L. c. 152, § 30 shall be accompanied by the following:

1. Claims for payment for adequate and reasonable health care services shall, where applicable, be accompanied by the following:

a. the dates of service;

b. the type of treatment or service and the itemized costs;

c. office notes, hospital records, or a statement from the attending physician or medical vendor that such visit, testing, prescription drug, therapy, or ancillary medical service device or aid was reasonable, necessary, and causally related to the injury for which the employee is eligible for benefits.

2. Claims for mileage reimbursement necessarily incidental to the provision of adequate and reasonable medical services shall be accompanied, where applicable, by the following:

a. an itemized bill confirming the date and location of treatment;

b. an affidavit from the claimant or the claimant's attorney attesting to the exact mileage from the employee's home to the site of the treatment and back, and, except where the travel is incidental to an examination requested by the insurer or the department, the purpose of the treatment and reason for the trip;

c. copies of parking receipts, canceled checks or receipts, together with documentation from the provider, except where the travel is incidental to an examination requested by the insurer or the Department, relating the service to the industrial injury and deeming it reasonable and necessary.

All bills presented shall, where possible, contain treatment codes, the percentage of reimbursement to which the hospital is entitled and the provider's tax identification number.

d. All claims for payment of an attorney's fee shall be accompanied by an order, decision, arbitrator's decision, lump sum or other agreement for compensation, or, where necessary, a memorandum outlining the circumstances giving rise to the entitlement of an attorney's fee under the appropriate subsection of M.G.L. c. 152, §§ 10B or 13A. Where necessary expenses have not been paid, a memorandum shall also outline the nature and amount of the expenses and be accompanied by receipts or proof of expenditures. Each claim shall be accompanied by an affidavit signed by the attorney attesting that payment of an attorney fee is owed and that the insurer has refused or neglected to pay the fee after being notified by certified mail that the fee and/or necessary expenses are owed and unpaid and that 14 days have passed since said notice was received.

e. Claims for payment of funeral expenses shall be accompanied by an itemized funeral bill together with a copy of a death certificate.

f. Claims for benefits under M.G.L. c. 152, § 31 shall be accompanied by a copy of a death certificate and the documentation required for filing a dependency benefit claim under M.G.L. c. 152, § 35A. Claims for benefits under M.G.L. c. 152, §§ 34, 34A and 35 shall be accompanied by a copy of a physician's report or record not more than six months old that describes the extent and duration of the employee's physical or emotional incapacity for work and which relates said incapacity to the claimed industrial injury.

g. All claims for cost-of-living adjustments pursuant to M.G.L. c. 152, §§ 34B shall be accompanied by an affidavit attesting to the date of injury under which the employee is collecting weekly compensation, the present section of M.G.L. c. 152 under which benefits are being paid, and the date of eligibility for the commencement of the claimed cost-of-living adjustments. This affidavit must be signed by the claimant or claimant's counsel. The claim must also be accompanied by a signed release for the Social Security office on form CR-28 (Commonwealth of Massachusetts Cost of Living Adjustment Data Form).

h. In any claim in which M.G.L. c. 152, § 35A is the only benefit claimed and where dependency is requested for dependents who are conclusively presumed to be dependent under M.G.L. c. 152, § 35A, the claim shall be accompanied, where applicable, by a copy of one or more of the following:

  1. the marriage license and a notarized statement from the dependent's spouse confirming that the spouse was living with the employee at the time of the injury;
  2. birth certificates for each child younger than 18 years old, or, if older than 18 years of age, an affidavit attesting to the circumstances under which the child qualifies as a dependent under M.G.L. c. 152, § 35A(c);
  3. any court order or decree or court approved agreement requiring the employee to pay child support; or
  4. an affidavit by a parent of an unmarried child younger than 18 years old attesting to the parent's dependency upon the support of the child.

(i) All claims for benefits under the provisions of M.G.L. c. 152 §§ 36 or 36A shall be accompanied by the following:

The claimant or his counsel shall also include in the signed written statement a detailed description of the nature and quality of the scarring or disfigurement, including color of the scar, and whether or not it has visible stitch marks or other visible, anatomical deformities, or, in the alternative, a dated color photograph which is of reasonable clarity and which depicts a ruler, tape or other measuring device placed in proximity of the scar being claimed which can be clearly seen by someone viewing the photograph, showing the length of scar being claimed.

No claims for scarring and disfigurement under the provisions of M.G.L. c. 152, § 36 may be filed sooner than six months following the date of injury or the surgery which is the basis of the claim for scarring or disfigurement, except that disfigurement claims relating to limps or use of canes may not be filed before an end medical result has been reached.

  1. Claims for functional loss shall include a physician's report which indicates that a maximum medical improvement has been reached and which contains an opinion as to the percent of permanent functional loss according to the American Medical Association's guide to physical impairment. There shall also be a statement from the claimant, or the claimant's attorney or other authorized representative indicating the specific monetary value of the benefit award being sought as reflected by the opinion of the physician's accompanying report. No claim for functional loss may be filed sooner than six months following an injury or the latest surgery resulting from the injury.
  2. Claims for scarring or disfigurement under M.G.L. c. 152 shall be accompanied by a physician's report, operative note, or other hospital record, describing the area of scarring or disfigurement in detail, including its length, size, and exact location, and a signed written statement by the claimant or the claimant's counsel indicating the specific monetary value of the benefit award being sought.

(j) A complaint requesting modification or discontinuance of benefits made pursuant to M.G.L. c. 152, § 10 shall be accompanied, where applicable, by the following documentation:

  1. hospital and medical records;
  2. physician's report(s) opining work capacity which shall be no more than six months old;
  3. an investigator's report or a synopsis which contains information indicating that the employee is working or exhibiting the capability of working, where the report is the sole basis for discontinuance;
  4. wage records demonstrating employment of the employee during the period compensation was collected;
  5. a job description of any work offered to the employee when accompanied by a medical report which contains a physician's opinion that the employee is capable of doing such work;
  6. a brief memorandum or affidavit specifying the basis for the request to modify or terminate benefits.

(k) A complaint requesting recoupment pursuant to M.G.L. c. 152, § 11D(3) shall be accompanied by a copy of the decision of an administrative judge or court of the Commonwealth indicating that an overpayment has been made and an affidavit bythe insurer attesting that weekly benefits are no longer being paid to the employee so that unilateral reduction cannot be implemented.

(l) A claim requesting reimbursement under M.G.L. c. 152, §§ 37 and 37A shall be made on a form prescribed by the Department which shall be accompanied by both a certificate stating that it was served on the Office of Legal Counsel, and by a petition which sets forth and documents items which include, but are not limited to, the following:

1. employee’s job description and duties; educational, military, and employment history; and, vocational training prior to the "subsequent impairment" (i.e. compensable personal injury for which petitioner seeks M.G.L. c. 152, §§ 37 through 37A reimbursement; also known as "second injury");

2. evidence of employer’s knowledge of employee’s pre-existing physical impairment due to a previous accident, disease or congenital condition as evidenced by such documents as a job application, a pre-employment physical report, or by employer’s affidavit attesting that employer knew of the impairment not later than 30 days after the date of employment, or (for injuries occurring prior to December 23, 1991) by medical records which existed prior to the date of the subsequent impairment;

3. evidence that a known pre-existing physical impairment was, or was likely to be, a hindrance or obstacle to employment (i.e. medical records evidencing permanent physical restrictions, documented job modifications or accommodations which employer made on behalf of employee);

4. all medical records pertaining to the subsequent impairment including attending physician reports, insurance medical examinations, and DIA impartial physician report;

5. from the compensation claim involving the second injury, copies of all DIA documents which substantiate the reimbursement which the petitioner seeks, such as:

a. Employee Claim Form (110)

b. First Report of Injury

c. Agreement(s) to Compensation

d. Conference Orders, Hearing Decisions and Lump Sum Agreement;

6. indemnity record for all reimbursable compensation paid after the 104th week from the date of the onset of disability or death that clearly identify the claimant, the section under which compensation was paid, the dates for which payment was made, and the amount of weekly compensation;

7. medical bills paid for all related reimbursable medical treatment received by employee after the 104th week from the date of the onset of disability (computer printouts which clearly identify the claimant, the service providers, and the dates of service constitute satisfactory documentation); and

8. a description of the subsequent impairment which includes an authoritative medical statement as to how the subsequent impairment is substantially greater (by the combined effects of such impairment and subsequent personal injury) than the disability that would have resulted from the subsequent personal injury alone, or that the subsequent injury was caused by the pre-existing impairment, and, if death results from the subsequent injury, that the death would not have occurred except for such pre-existing physical impairment.

(m) All claims and complaints alleging M.G.L. c. 152, §§ 8 and/or 14 must specify the individual subsections under M.G.L. c. 152, §§ 8(1), 8(5), 14(1) or 14(2) or the claim or complaint shall be administratively withdrawn.

(n) Claims for penalties under M.G.L. c. 152, §8(5) shall be accompanied by an affidavit stating the penalty being claimed and the basis for the alleged claim.

1.08 Conciliation

(1) A conciliation held pursuant to M.G.L. c. 152, § 10, shall be presided over by a conciliator within the Division of Dispute Resolution. The conciliation shall be informal. The conciliator shall meet with the parties jointly and may, in his discretion, meet with each party separately.

(2) A party to a conciliation may be represented by counsel of record or any person bearing written authority to sign agreements as to compensation for such party. Any person who is not a party or who does not bear such authority may attend a conciliation only with the consent of all parties.

(3) No conciliator shall be called to testify at any proceeding within the Division of Dispute Resolution regarding any issue which has come before him as a conciliator.

(4) Before a conciliator can refer an insurer's complaint to modify or discontinue compensation benefits to the Industrial Accident Board, the insurer must have provided to the employee or the employee's designee, a copy of the wage schedule upon which weekly benefits are being paid. Alternatively, the insurer shall furnish an affidavit signed by a representative of the insurer stating that the wage schedule has been requested by the insurer, but the insured would not or could not produce such a wage schedule. The employee or the employee's attorney may waive such requirement.

(5) Claims and complaints filed without substantial compliance with the requirements of 452 CMR 1.07(2) shall be withdrawn by the conciliator without prejudice at conciliation unless waived by the opposing party at or before the conciliation.

(6) Claims for reimbursement under M.G.L. c. 152, §§ 37 and 37A will be scheduled for conciliation in the Boston Office unless the parties agree in writing, at the time of the filing, that it is to be adjudicated at a specified regional office.

1.09: Assignment to Division of Dispute Resolution

(1) An insurer who is aggrieved by the assessment of a referral fee of 130% of the average weekly wage in the Commonwealth pursuant to M.G.L. c. 152 § 10(5) may seek an administrative review by the conciliation manager within 30 days of the issuance of the bill and shall include any relevant documentation with such request.

(a) A conciliator's assertion that an insurer was absent for a scheduled conciliation shall be final, and the review shall be limited to the issues of whether the higher assessment was a mistake and, if not a mistake, whether the absence of the insurer was beyond such insurer's control. Said manager shall make a finding within 30 days of receipt of a documented request for review.

(b) An insurer who is aggrieved by the finding of said manager shall have 14 days from receipt of said finding to request a hearing before the Director or the Director's designee, who shall schedule such hearing in Boston within 30 days of receipt of such request. The issues at such hearing shall be limited to those that may be considered in the administrative review. The hearing shall not be subject to rules of evidence.

(c) No insurer shall be granted more than one administrative review for any referral of a case to the Division of Dispute Resolution.

(d) An insurer's obligation to pay a referral fee shall not delay the forwarding of the claim and the case to the Industrial Accident Board.

(2) At any time after the case has been assigned to the Industrial Accident Board, any party may petition the Director for a stay of the proceedings for documented reasons beyond the control of such party or his or her attorney. On any such request, the Director may grant a stay for no more than 60 calendar days. A list of all stays shall be compiled quarterly and shall be submitted to the advisory council.

(3) At any proceeding within the Division of Dispute Resolution, the burden of going forward shall be on the party seeking benefits or on the insurer seeking modification or discontinuance of benefits.

1.10: Conference

(1) The administrative judge shall preside over the conference held pursuant to M.G.L. c. 152, § 10A. Such conference shall be informal, and inquiries and investigations shall not be subject to the rules of evidence applied in this Commonwealth.

(2) The parties shall prepare for submission at the outset of a conference a memorandum setting forth the benefits claimed and the issues in dispute, the facts stipulated, the exhibits to be marked for identification, the names of witnesses to be presented, a summary of their anticipated testimony, the estimated length of the hearing, and such other matter as may be allowed or required. Such memorandum may be amended by the parties, with the leave of the administrative judge, at or before the hearing. At a conference involving a medical issue, the parties shall also identify to the administrative judge as part of the required memorandum:

(a) the medical issue(s) in dispute requiring the filing of the requisite fee;

(b) a list of documents to be included in the medical records to be sent to an impartial physician; any hypotheticals or disclosure questions to be submitted to the impartial physician upon the judge's approval; identification of a specialty or the names of up to three impartial physicians in order of preference if agreed upon; and the names of any additional physicians anticipated to be requested at hearing to be deposed;

(c) any objections to the documents included in the medical records and hypotheticals to be submitted to the impartial physician.

(3) All conference impartial medical packet submissions (medical and hypothetical questions), and non-medical submissions shall be submitted to the Department of Industrial Accidents electronically or by compact disc (CD), on or before the date of the scheduled conference.

(a) The conference submissions must be emailed to both the judge and his/her administrative assistant. Additional medical documents and hypothetical questions that were not part of the Conference packet will only be accepted and forwarded to the impartial examiner if received by the Department at least 15 business days prior to the scheduled impartial examination. Any additional medical documents received within fifteen business days of the examination will only be accepted at the discretion of the administrative judge and the Senior Judge.

(b) The medical and non-medical packet must be submitted separately. Electronic submissions must be in Portable Document Format (PDF) and in optical character recognition format (text-recognizable/OCR). Each packet shall:

1. have a table of contents page that contains:

a. board number;

b. date of injury;

c. employee's name;

d. employer's name;

e. insurer;

f. heading;

g. submitting party; and

h. date of the document.

  1. have functioning bookmarks link;
  2. have medical records that are clean of notations, underlining, or highlighting of text (unless those markings are in the original documents); and,
  3. not contain dividing pages separating each facility's or doctors' reports.

(c) Conference submissions that do not meet submission criteria will not be accepted, and the party will be requested to resubmit the documents. A hard copy of these submissions may be submitted to the administrative judge at the conference. Bar code sheets are not required for the conference medical packet or the non-medical packets submitted electronically. If a pro se litigant has no access to electronic means of document transmission she or he must prepare separate hard copies of the conference medical and non-medical packets which must contain a table of contents as set forth in 452 CMR 1.10(3)(b)1.a. through h., with tabs for each section of the packet. Bar code cover sheets must be prepared by the party at the Department and those sheets must accompany each conference packet.

(4) No stenographic transcription or electronic recording shall be made of the conference proceedings under M.G.L. c. 152, § 10A, except that the administrative judge, if he deems it to be 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 expense, to make a transcription or recording of the proceedings.

(5) No impartial physician shall be required in disputed matters concerning death and matters where the dispute over entitlement to weekly benefits concerns specific period(s) of prior disability.

(6) In disputes regarding the extent of incapacity where the parties agree upon both the nature of the impairment as well as the causal relationship between the impairment and the employment, subject to the provisions of M.G.L. c. 152, § 11A(2) and 452 CMR 1.02, the parties may agree in writing at the time of conference that an impartial physician is not required.

(7) In claims where initial liability has not been established, subject to the provisions of M.G.L. c. 152, § 11A(2) and 452 CMR 1.02, the parties may agree in writing at the time of conference that an impartial physician is not required.

(8) In cases where no impartial physician is required the requisite fee pursuant to M.G.L. c. 152, § 11A(2) shall not be required.

(9) No impartial physician shall be required where an administrative judge has determined, based upon the information submitted at the M.G.L. c. 152, § 10A conference, that there is no dispute over medical issues and has so stated in the M.G.L. c. 152, § 10A conference order.

(10) The responsibility for providing and paying for an interpreter when needed at the

  1. c. 152, § 10A conference rests with the party that files the claim or complaint. Thereafter, responsibility for providing and paying for an interpreter, whenever one is needed, rests with the party appealing from the conference order. If both parties appeal from the
  2. c. 152, § 10A conference order, the responsibility of providing and paying for such interpreter rests with the party that filed the claim or complaint.

1.11: Hearings

(1) Unless a late appeal is permitted by the Director, as provided by M.G.L. c. 152, § 10A, any appeal from an order of an administrative judge must be filed with the department, on a form prescribed by the department, not later than 14 calendar days from the filing date of said order.

(a) Where the appointment of an impartial examiner is required, a party has up to ten calendar days following the filing of the appeal to pay the Department the requisite fee. A request for a waiver of the requisite fee based on indigence shall be filed with the Director on a form prescribed by the Department not later than ten calendar days following the filing of the appeal. Where more than one party files an appeal, each shall file timely either the requisite fee or a request for waiver on the prescribed form. The Department shall designate the first check received as the requisite fee required to schedule an examination by an impartial physician. All other checks will be returned.

(b) In a multiple insurer claim, all the individual appeal forms shall accompany a cover sheet approved by the Department which identifies all insurers and states the board number of each claim. One check payable to the Department in the amount of the requisite fee appended to the multiple appeal cover sheet with all individual appeal forms presented in a timely manner shall perfect all appeals.

(c) Pursuant to M.G.L. c. 152, § 11, the parties may at the discretion of the administrative judge, agree in writing or on the record that an impartial physician is not required if such agreement has not been reached at conference;

(d) In any hearing in which the insurer raises the applicability of the fourth sentence provisions of M.G.L. c. 152, § 1(7A), governing combination injuries, the insurer must state the grounds for raising such defense on the record or in writing, with an appropriate offer of proof.

(2) Upon opening the hearing record, the parties shall exchange hearing memoranda produced on forms prescribed by the Department, and the administrative judge shall state clearly on the record, the claims and defenses in issue in the dispute.

(3) At a hearing, any testimony of parties and witnesses before an administrative judge shall be given under oath or affirmation. Where the administrative judge finds that testimony should be given through any interpreter, the latter shall give oath to interpret faithfully and impartially.

(4) In all hearings before an administrative judge the testimony of witnesses shall be taken orally or by deposition. Unless otherwise provided by M.G.L. c. 152, or 452 CMR 1.00, the admissibility of evidence and the competency of witnesses to testify at a hearing shall be determined under the rules of evidence applied in the courts of the Commonwealth. The decision of the administrative judge shall be based solely on the evidence introduced at the hearing.

(5) At a hearing in a case which does not involve a dispute over medical issues as defined in 452 CMR 1.02, or in which the administrative judge has made a finding under M.G.L. c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, a party may offer as evidence medical reports prepared by physicians engaged by said party, together with a statement of said physician's qualifications. The administrative judge may admit such medical report as if the physician so testified, provided that where specific facts are in controversy, the administrative judge shall, on motion by a party, strike any part of such report that is not based on:

(a) the expert's direct personal knowledge;

(b) evidence already in the record; or

(c) evidence which the parties represent will be presented during the course of the hearing. Pursuant to 452 CMR 1.12(5), any party may, for the purpose of cross-examination, depose the physician who prepared an admitted medical report. After such cross examination, the parties may conduct further examination pursuant to the rules of evidence applied in courts of the Commonwealth.

(6) The administrative judge shall preside over the hearing and shall control the conduct of parties, attorneys, and witnesses. Each party at a hearing may give a brief opening statement and closing argument, and may submit briefs, motions, requests for findings of facts, and requests for rulings of law, within such time as the administrative judge may prescribe. The administrative judge, at his discretion, may require the filing of briefs in such form and within such time as he may direct.

1.12: Discovery and Depositions

(1) On or after the filing of any claim, the claimant may serve on any other party a request to be permitted to enter upon a designated area or areas of the employer's premises for the purposes of measuring, surveying, photographing, testing, sampling, or inspecting any designated object, record, or substance thereon.

(2) On or after the filing of any claim or complaint, any party may serve on any other party, employer or medical provider rendering treatment to the claimant, a request to produce, and permit the party making the request to inspect and copy, any medical notes, treatment reports and employment records to include but not be limited to record of wages earned subsequent to the alleged injury.

(3) Any request submitted under 452 CMR 1.12(1) or (2) shall set forth the item or category of items to be inspected, and describe each item or category with reasonable particularity. Such request shall be accompanied bya statement providing the relevance of the requested information to the instant case. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party on whom the request is served shall respond in writing within 20 calendar days after service of the request. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated.

(4) On written motion of a party, the administrative judge to whom the case has been assigned may require, by the issuance of any order, compliance with any request for discovery, including any request submitted under 452 CMR 1.12(1) or (2). Failure to comply with said order without good cause may result in assessment of costs or penalties pursuant to M.G.L. c. 152, § 14. Any motion relating to discovery must be served upon counsel for the opposing party and the administrative judge. The party receiving the motion shall, within ten days of receipt of the motion, comply with the discovery sought by motion or provide a written response opposing the motion with specificity to the other party and the administrative judge. A hearing on the motion may be required at the discretion of the administrative judge. The administrative judge may rule upon the motion without hearing

(5) At a hearing in which the case does not involve a dispute over medical issues as defined in 452 CMR 1.02, or in which the administrative judge has made a finding under M.G.L. c. 152, § 11A(2) that additional testimony is required due to the complexity of the medical issues involved or the inadequacy of the report submitted by the impartial medical examiner, an administrative judge may authorize the taking of testimony of medical witnesses by deposition. An administrative judge shall authorize the testimony by deposition of the impartial physician. The impartial physician's testimony may not be taken prior to the first scheduled M.G.L. c. 152, § 11 or § 11A(2) hearing date as applicable unless authorized by the administrative judge. The administrative judge's authorization of a pre-hearing impartial physician deposition must be in writing. In addition to the impartial physician's deposition, an administrative judge may authorize the submission of medical testimony by deposition on motion by a party or on the judge's own initiative. The required finding on medical complexity and/or inadequacy of the impartial physician's report may be made by the administrative judge prior to the first scheduled M.G.L. c. 152, § 11 or § 11A(2) hearing date as applicable. After receipt of the impartial physician's report, upon written request of a party, the administrative judge may authorize such additional medical testimony due to inadequacy of the report or the complexity of the medical issues involved.

(a) The administrative judge's authorization of additional medical testimony must be in the form of a written finding that such testimony is required due to the complexity of the medical issues involved or the inadequacy of the report of the impartial physician. Additional medical testimony may only be authorized pursuant to 452 CMR 1.00.

(b) Notice of the date, time, and place of the deposition shall be provided to all opposing parties in writing with a certificate of service not less than seven calendar days before the deposition. The deposition shall be taken for use as medical evidence only and shall be admissible, in whole or in part, in proceedings before an administrative judge. No deposition of an impartial physician may exceed three hours without the agreement of all parties, including the physician, or unless authorized in writing by the administrative judge on a motion by a party. All depositions shall be submitted at the time requested by the administrative judge but no more than 60 calendar days from the close of lay testimony, provided that a party may motion the administrative judge for an extension for cause for no more than 30 calendar days. Any extension shall be authorized in writing by the administrative judge on motion by a party.

(c) Where an impartial medical examiner who has submitted his or her report is rendered unavailable, or makes him or herself unavailable for deposition, either party may file a motion seeking a ruling that the impartial medical examiner is unavailable. Unless the parties otherwise agree, a ruling of unavailability resulting from reasons other than those stated in M.G.L. c. 152, § 20B, shall result in the striking from the record evidence of the impartial medical examiner's report, and a required ruling of inadequacy authorizing the parties to submit additional medical testimony. Upon such a ruling, the administrative judge shall allow a reasonable extension of time for submission of such additional medical evidence, not to exceed 45 days.

(6) Medical witnesses shall be informed, before the taking of their testimony by deposition, of their right to read and sign a transcription of their testimony, or of their right to waive such reading and signing. All objections to questions and all motions relevant to testimony shall be set forth with particularity, and with the reasons in support thereof, and no administrative judge shall be required to rule on any objection or motion unless such reasons or statements have been made.

(7) An attorney for any party may serve a subpoena, issued by a Notary Public, a Constable or a Justice of the Peace, stating the title of the action, name of the administrative judge, or the Senior Judge if an administrative judge has not been assigned, and shall command each person to whom it is directed to attend and give testimony or produce documents at a time and place therein specified. The Notary Public, Constable or Justice of the Peace shall issue a subpoena or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service. A subpoena may also command the person to whom it is directed to produce books, papers, documents or tangible things designated therein, but the administrative judge, upon motion at or before the time specified in the subpoena for compliance therein, may:

(a) quash or modify the subpoena it if is unreasonably oppressive; or beyond the scope of discovery or seeks documents protected by privilege; or

(b) condition denial of the motion upon the advancement of the person in whose behalf the subpoena is issued of the reasonable cost for producing the books, papers, documents or tangible things.
Notice of the subpoena must be given to counsel for each party to the action at least two business days prior to service. At the option of the party, a subpoena commanding the production of documents or other tangible things may include a provision stating that for the convenience of the witness and in lieu of appearance at the proceeding, the requested documents may be provided at a date, time and place specified in the subpoena. Any party receiving documents or other tangible things in response to a Subpoena shall provide a complete copy of the response to all parties to the action prior to commencement of the proceeding. Any documents obtained by subpoena not in compliance with this regulation shall not be admissible in any proceeding except by agreement of the parties, or as allowed by the administrative judge for just cause. Failure to comply with 452 CMR 1.12(7) may subject the attorney to the provisions of M.G.L. c. 152, § 14.

1.13: Medical Reports and Records

Pursuant to M.G.L. c. 152, § 30A, on the written request of a party, the Department shall, on receipt of records kept or compiled under M.G.L. c. 111, § 119, cause them to be impounded under seal apart from the main file, to be used only by the administrative judge or Reviewing Board in connection with a proceeding under M.G.L. c. 152. Where such records become evidence in any proceeding, they shall be incorporated in the report by reference only, and in the event of certification under M.G.L. c. 152, § 12, shall be certified and impounded under seal.

1.14: Impartial Physicians

(1) If within ten calendar days of filing the appeal the parties have not selected, or an administrative judge has not appointed, a physician from the impartial physician roster to examine the employee, the impartial unit shall choose a physician as directed by the Senior Judge.

(2) Once the impartial physician has been selected or appointed, the administrative judge shall submit to the impartial unit all approved medical records, any hypothetical fact patterns and any stipulations of fact for transmission to the impartial physician. No party or representative may initiate direct, ex parte communication with the impartial physician and shall not submit any form of documentation to the impartial physician without the express consent of the administrative judge.

(a) The impartial physician may not communicate with the parties unless authorized to do so by the administrative judge, except that a party who wishes to engage the impartial physician to be deposed for the purposes of cross examination may contact the physician or his office for the purpose of scheduling a deposition.

(b) The impartial physician may contact the impartial scheduling unit to request medical records and reports from providers who have treated the employee prior to the date of the selection or appointment of the impartial physician. Providers of diagnostic services and testing shall send these records directly to the impartial physician upon request of the impartial physician or of the impartial unit. The administrative judge shall give all parties the opportunity to review the additional medical records, and rule on any objection raised by the parties to submission of the additional records to the impartial physician.

(c) Except by leave of the administrative judge, hypothetical questions to the impartial physician must be submitted to the administrative judge within 14 days of the appeal of the conference order.

(3) The filing fee paid pursuant to M.G.L. c. § 11A(2) to defray the cost of an impartial examination is $650.00, with further provision when required for a $150.00 cancellation or missed appointment fee, and a $200.00 supplemental report fee. The fee for deposition of an impartial physician is $750.00 for up to two hours, and $150.00 for each hour thereafter. The fee for a review of the records and report, without examination is $300.00. Any appeal of a conference order will be rejected if a fee in the aforesaid amount is not filed with the Department within ten days of the filing of the party's appeal.

(4) An impartial physician may request increased impartial fees. The request for increased fees shall be allowed if agreed to by the parties, or the administrative judge may order increased fees where extraordinary time and effort is required based on the complexity of medical issues, voluminous medical record submissions or other justification warranting additional compensation.

(5) Filing fees posted on behalf of an indigent claimant by the Department to defray the cost of an impartial examination under M.G.L. c. 152, § 11A(2) shall be reimbursed to the Department by the insurer if the claimant prevails at the hearing.

(6) The filing fee paid pursuant to M.G.L. c. 152, § 11A(2) shall be reimbursed by the Department to each appellant if the parties have agreed pursuant to 452 CMR 1.11(1)(c) that an impartial physician is not required or the matter is resolved by the parties prior to the scheduled impartial examination. Any fee required to be paid to an impartial physician for cancellation of a scheduled impartial examination shall be deducted equally from each appellant's reimbursed filing fee.

(7) A party requesting the appointment of an impartial physician by the senior judge under the provisions of M.G.L. c. 152, §8(4) shall be responsible for payment to the impartial physician for the procurement of a report in an amount consistent with criteria developed by the health care services board pursuant to M.G.L. c. 152, §13.

(8) Any payment made by a party to an impartial physician appointed by the senior judge under the provisions of the second paragraph of M.G.L. c. 152, § 8(4) shall be reimbursed by the insurer if the report determines that the particular course of medical treatment claimed was appropriate.

(9) Parties precluded by 452 CMR 1.00 from procuring the appointment of an impartial medical examiner under M.G.L. c. 152, § 11A(2) may, by agreement, petition the administrative judge having jurisdiction over the case for the appointment of a impartial physician. If the petition is granted, said impartial physician shall be paid an amount consistent with M.G.L. c. 152, § 11A(3) by, or amongst, any of the requesting parties.

1.15: Reviewing Board

(1) Notice of Appeal. Any appeal from a decision of an administrative judge must be filed with the Department on the form prescribed by the Department not later than 30 days from the filing date of the decision, unless a late appeal is permitted by the Director as provided by M.G.L. c. 152, § 11CA copy of the appeal shall be served by mail or in hand on counsel for each party or on each unrepresented party.

(2) Filing Fee. The filing fee or a request for its waiver shall be submitted to the Reviewing Board with the notice of appeal. The filing fee prescribed by M.G.L. c. 152, § 11C shall be 30% of the average weekly wage in the Commonwealth at the time of payment. Any request for a waiver of the filing fee based on indigence shall be filed on a form prescribed by the Department.

(3) Reviewing Board. An administrative law judge may require counsel or pro se litigants to appear for a conference to consider waiver of the filing fee, simplification of the issues on appeal, whether oral argument will be held, and any other matters that may aid in the disposition of the appeal.

(4) Briefs. Unless otherwise ordered by the Reviewing Board, a brief shall be filed by the appellant in all cases in accordance with the following provisions:

(a) Content. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

  1. A statement of the issues presented for review; stated with particularity. A statement that the decision on review is beyond the scope of the administrative judge’s authority, arbitrary or capricious, or contrary to law, without more, shall not constitute a proper statement of the issues presented for review;
  2. A statement of the case, which shall first indicate briefly the nature of the case, the course of proceedings and its disposition following conference and hearing. There shall follow a brief statement of the facts relevant to the issues presented for review, with appropriate references to the record;
  3. The argument, which shall contain the contention of the appellant with respect to the issues presented, supporting rationale and citations to the authorities, statutes, rules, regulations and parts of the record on which the party relies. The Reviewing Board need not decide questions or issues not argued in the brief. If oral argument is permitted nothing argued in the brief shall be deemed to be waived by a failure to argue the issue orally;
  4. A short conclusion stating the precise relief sought; and
  5. The names, addresses and telephone numbers of counsel and their firms.

(b) Length and Form of Briefs. All briefs and appendices shall be produced as follows:

  1. Except by permission of an administrative law judge, briefs shall not exceed 30 pages, exclusive of pages as may contain a table of contents, tables of citations and any addendum containing statutes, rules or regulations. Permission shall not be granted unless the moving party specifies the relevant issue or issues and why such issues merit additional pages.
  2. All briefs and appendices shall be produced by any duplicating or copying process that produces a clear black image on white paper, which shall be eight and one-half inches in width and eleven inches in height. The top, bottom, left and right margins shall be at least one inch. The typeface shall be 12 point Courier font or larger size and not exceeding 10.5 characters per inch. Text shall be double-spaced, except that argument headings, footnotes and indented quotations shall be single-spaced. The text may appear on both sides of the page, but the numbered pages of text shall not exceed the page limit set for the brief.
  3. On behalf of the Reviewing Board, an administrative law judge may accept briefs filed which are not in substantial compliance with 452 CMR 1.00.

     

(c) Statutory Provisions. If determination of the issues presented requires consideration of statutory provisions, rules or regulations, or when an appeal involves the application of amendments to M.G.L. c. 152, the parties shall reproduce all relevant sections of the original act and any later amendments, including all provisions regarding applicability and effective dates.

(d) Citations. References to decisions and other authorities shall include, in addition to the page at which the decision or section begins, a page reference to the particular material on which reliance is placed, and the year of the decision or other authority.

(e) Amicus Curiae. An amicus curiae shall notify the Reviewing Board of its intention to file a brief.

(f) Response Briefs. The brief of the appellee, cross-appellant or amicus curiae shall conform to 452 CMR 1.15(4)(a) and (b) with the exception that a statement of issues shall not be made unless the appellee or amicus curiae is dissatisfied with the statement of the appellant.

(g) Designation of Parties. In their briefs and oral arguments, counsel shall refer to the parties as designated by the administrative judge in the decision, such as "the employee," "the claimant," "the employer," and "the insurer" and should keep to a minimum, references to parties by such designations as "appellant" and "appellee".

(h) Time for Filing. Appellant shall file its brief 30 days after receipt of notification from the Reviewing Board that it is due. The appellee, cross-appellant or amicus curiae shall file its brief within 20 days of receipt of the appellant's brief. A reply brief may be filed by the appellant 20 days thereafter. No further briefs shall be filed without leave of the Reviewing Board. When there are cross-appeals, the party that files its appeal first shall be considered the appellant for the purpose of complying with the time requirements for the filing of briefs.

(i) Extension of Time. A request for an extension of time to file a brief shall be filed in writing with the Reviewing Board and shall state the length of extension requested and the specific reason for the request.

(j) Copies of Briefs. The original and four copies of each brief shall be filed with the Reviewing Board unless the Reviewing Board by order shall direct a different number to be filed. One copy shall be served by mail or in hand on counsel for each party or on each unrepresented party.

(5) Dismissal of Appeal. The Reviewing Board may dismiss an appeal or cross-appeal for the following reasons:

(a) failure of the appellant, without good cause, to file a brief, unless filing has been waived by the Reviewing Board;

(b) failure of the appellant or cross-appellant to submit a filing fee or a fee waiver form;

(c) failure of the appellant or cross-appellant to appear at oral argument without good cause.

(6) Oral Argument. If it elects to hear oral argument, the Reviewing Board shall advise all parties and any amicus curiae of the time and place of hearing. A request for postponement of the argument shall be made by motion filed reasonably in advance of the date fixed for hearing. The appellant shall argue first. Each party shall be allowed 15 minutes for argument unless the time is extended or limited by the Reviewing Board. In advance of oral argument, a party may request additional time, which will be granted only under unusual circumstances.

(7) Withdrawal of Appeal. The parties to any case pending before the Reviewing Board shall notify the Reviewing Board in writing of any settlement, withdrawal of appeal, adjustment or other disposition.

1.16: Copies of Orders, Decisions and Memoranda of Agreements

A request for a certified copy of an order or decision of an administrative judge or the Reviewing Board, or a memorandum of agreement, and all papers in connection therewith required by M.G.L. c. 152, § 12, shall be accompanied by a payment of no less than $10.00 when the actual cost of copying said documents exceeds $10.00, the party requesting said copies shall be billed for the additional cost and shall remit the additional charge.

1.17: Ex Parte Communications

No party or representative of a party involved in a proceeding before an administrative judge or Reviewing Board shall submit to the administrative judge or Reviewing Board 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 the Reviewing Board, a copy shall be served by mail or in hand on counsel for each other party or directly on each other party if not represented.

1.18: Practice Before the Department

(1) Any attorney admitted to practice before the courts of the Commonwealth may practice before the Department.

(2) In any proceeding before the Department, any person not admitted to practice before the courts of the Commonwealth may appear and act for himself, or for a partnership of which he is a member, or for a corporation of which he is an officer, or for anybody from whom he has written authorization to represent on file with the Department on a form prescribed by the Department.

(3) An attorney, or other authorized representative may, without leave, withdraw as representative by filing a written notice of withdrawal, with copies to all parties, provided that such notice is accompanied by the appearance of a successor representative. Under all other circumstances, leave of the administrative judge, or administrative law judge having jurisdiction over an active proceeding must be obtained. In cases where no judge has active jurisdiction leave must be obtained from the office of the Senior Judge.

(4) Whenever an attorney appears at a proceeding, who:

(a) is not the attorney of record; or

(b) is not an attorney who, pursuant to his or her registration with the Board of Bar

Overseers, shares the same business/professional address as the present attorney of record; the attorney must file a written notice of appearance on a form prescribed by the Department prior to addressing the board in the proceeding. Where more than one attorney has filed an appearance for a party, all notices will be sent to the attorney who most recently appeared. In all cases, any attorney or qualified representative so appearing, is representing to the Department that she or he possesses full authority to handle any and all aspects of the matter presently pending at the Department.

1.19: Payment of Attorney's fees

(1) Where an attorney's fee is paid by the insurer pursuant to M.G.L. c.152, § 13A, that shall be the only fee permitted and no additional fee shall be charged by the attorney for such services. When the employee's attorney and the insurer agree on a fee and expenses, such fee and expenses shall be deemed to be approved by the administrative judge or Reviewing Board as the case may be. When the employee's attorney and the insurer are unable to agree, the administrative judge or Reviewing Board to whom the case was assigned shall determine the appropriate fee pursuant to M.G.L. c. 152, § 13A.

(2) An employee and his or her attorney may agree on a retainer, but only to pay for necessary and reasonable expenses and disbursements related to his representation. Any employee's attorney entitled to a fee paid by the insurer under M.G.L. c. 152, § 13A, shall provide the administrative judge or Reviewing Board with an itemization of any necessary and reasonable expenditures and disbursements related to his services, including expenses and disbursements paid by the employee. The insurer shall reimburse the employee for any such expenses or disbursements approved by the administrative judge or the Reviewing Board.

(3) When an insurer, at least two days before a conference, or at least five days before a hearing, serves on a claimant or person receiving compensation or the representative of such claimant or person a written offer to pay weekly compensation or compensation under M.G.L. c. 152, § 30 or 36, and such offer is not accepted, the insurer shall not be required to pay any fee under M.G.L. c. 152, § 13A, for such conference or hearing, unless the order or decision rendered directs a payment of said weekly or other compensation in excess of that offered. Such an offer may be to pay weekly compensation in an amount less than the amount being paid at the time the offer is tendered provided that, if the compensation is being paid pursuant to M.G.L. c. 152, § 8, and the insurer has a workers' compensation policy in effect for the policy year period in which the offer is made with the employer where the alleged injury occurred, then a wage statement signed by said employer indicating the average weekly wage at the time of such alleged injury shall be attached to the written offer of payment.

(4) In any proceeding before the Division of Dispute Resolution, the claimant shall be deemed to have prevailed, for the purposes of M.G.L. c. 152, § 13A, when compensation is ordered or is not discontinued at such proceeding, except where the claimant has appealed a conference order for which there is no pending appeal from the insurer and the decision of the administrative judge does not direct a payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision.

(5) For purposes of M.G.L. c. 152, § 13A(5), withdrawal by an insurer at or after the hearing shall constitute withdrawal within five working days of the date set for a hearing pursuant to M.G.L. c. 152, § 11. For purposes of M.G.L. c. 152, § 13A(5), the employee shall be deemed to have prevailed when an insurer’s M.G.L. c. 152, § 14 fraud or recoupment complaint is denied and dismissed. For purposes of M.G.L. c. 152, § 13A(6), an employee shall be considered to have prevailed before the Reviewing Board if an insurer has withdrawn after an appeal for review has been filed under M.G.L. c. 152, § 11C.

(6) Nothing in 452 CMR 1.19 shall affect fees paid to an attorney by an employee for services other than those rendered an employee under M.G.L. c. 152.

(7) The attorneys' fees due under M.G.L. c. 152, § 13A shall be computed pursuant to M.G.L. c. 152, § 13A(10) based on the average weekly wage in the Commonwealth on the date the order or decision is rendered, or the date the insurer accepts the claim or withdraws its request for modification or termination.

(8) For injuries occurring before November 1, 1986, fees of attorneys for representation of employees under M.G.L. c. 152 shall be subject to the approval of an administrative judge or Reviewing Board. If the employee and attorney cannot agree as to the attorney's fee, either party may notify the Division of Dispute Resolution which shall assign the case for a conference and/or hearing.

1.20: Joinder

(1) An administrative judge before whom a proceeding is pending may join, or any party to such proceeding may request the administrative judge to join, as a party, on written notice and a right to be heard, an insurer, employer, or other person who may be liable for payment of compensation to the claimant.

(2) A party to be joined shall not be allowed to raise a defense of late claim if the original claim was filed timely, but shall be allowed to raise any and all other reasonable defenses which would have been available to him had the claimant filed an original claim against the party to be joined, provided that the party requesting joinder, in the absence of mistake or inadvertence, made a reasonable attempt to ascertain the identity of the correct party or parties before the filing of the original claim.

(3) When it is decided, after proper hearing of a request to join, that the subject of such request shall be joined, the new party shall be allowed a reasonable period of time to prepare a defense. Such period shall not exceed 45 calendar days from the date of joinder, unless the administrative judge who orders the joinder finds that additional time to prepare a defense is needed.

1.21: Third Party Liability

(1) When an employee who claims or receives benefits under M.G.L. c. 152 seeks damages from some other person or entity other than the employer or its workers' compensation insurer, within the meaning of M.G.L. c. 152, § 15, the employee shall immediately notify the insurer by certified mail of the commencement of the action. Where the workers' compensation insurer proceeds to enforce the liability of such third person, it shall notify the employee in the same manner.

(2) Where the employee or the workers' compensation insurer recovers judgment or reaches a settlement in a civil action in any court, the terms of such judgment or settlement shall be reported immediately to the Department as well as to the appropriate rating bureau as required by M.G.L. c. 152, § 53A(4).

(3) When the parties elect to submit to the jurisdiction of the Department, the settlement by agreement shall be in writing and in conformity with the guidelines and format prescribed by the Department. Approval authority statutorily residing in the Reviewing Board and the Board may be delegated to an individual administrative law judge or administrative judge by the Senior Judge.

(4) A hearing on the merits of the proposed settlement will be held if requested by the parties. In the alternative, the parties may waive their right to a hearing and submit the executed settlement agreement to the designated judge for review and disposition, except when a third party settlement is conditioned upon the approval of a lump sum settlement. In that

1.22: Amendments to Claims and Complaints

(1) Pursuant to M.G.L. c. 152, § 49, a party may amend his or her claim or complaint as to the time, place, cause, or nature of the injury, as a matter of right, at any time prior to a conference, with written notice to all parties. At the time of a conference or thereafter, a party may amend such claim or complaint only by filing a motion to amend with an administrative judge. Such a motion shall be allowed by the administrative judge unless the amendment would unduly prejudice the opposing party.

(2) As to a party to the original action, a party may amend a claim or complaint in writing with notice to all parties as a matter of right at any time prior to a conference whenever the controversy created by the amended claim or complaint arose out of conduct, incident, or series of occurrences set forth or attempted to be set forth in the original claim or complaint.

(3) No amendment to a claim or complaint may be made except as provided by M.G.L. c. 152 and 452 CMR 1.00. Any party shall be allowed a reasonable period of time to prepare a defense to an amended claim or complaint. Such period shall not exceed 45 calendar days from the date of notice of the amendment, unless an administrative judge finds that additional time to prepare a defense is needed.

1.23: Recoupment of Overpayment

Where an employee is receiving weekly benefits by agreement or by an order or decision, and a subsequent order or decision filed pursuant to M.G.L. c. 152 authorizes retroactive reduction of the weekly compensation rate, but does not terminate weekly benefits, the order or decision shall specifically address the manner or method of recoupment of such overpayment by the insurer.

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