Latency claims, MGL c. 152, § 35C

Information you need to know about how and when to file latency claims under MGL c. 152, § 35C.

MGL c. 152, § 35C states that where there is a difference of 5 years or more between the date of injury (date of exposure) and the initial date on which the injured worker or survivor first became eligible for benefits under MGL c. 152, §§ 31, 34, 34A, or 35, the applicable benefits shall be those in effect on the first date of eligibility for benefits (disability or death).

The Workers' Compensation Trust Fund and latency claims

The Worker's Compensation Trust Fund (WCTF) was established in the state treasury, pursuant to MGL c. § 65 (2)(b). The proceeds of the Trust Fund shall be used to reimburse the following compensation: reimbursement of adjustments to weekly compensation pursuant to § 35C.
 

  • An adjustment to compensation means the difference between the higher wage at the time of death or disability as compared with the lower wage on the date of the last likely injurious exposure. Adjustments to compensation are defined by regulation 452 CMR 3.02(3): "adjustments to compensation" shall mean any increase in benefits paid to an employee as a result of the applicability of the 1st subsection of § 35C.
     
  • Any increases or 'adjustments' to compensation due to §§ 34B or 35F (COLA) aren't  increases or adjustments within the meaning of § 65(2)(b) and the 1st paragraph of § 35C.

Benefits paid to the injured worker or claimaint by the insurance company

According to 452 CMR 3.02 (1), for purposes of MGL c. 152 § 35C, applicable benefits on the first date of eligibility for benefits shall be based on the employee's average weekly wage (AWW) as of such first date of eligibility for benefits, or, if the employee is not employed on that date, it shall be based on the employee's average weekly wage as of the employee's last date of employment.

Please note: The employee's earnings from the last employer governed by MGL c. 152 are the basis to determine the AWW and the applicable benefits.

When § 35C benefits may be claimed

According to 452 CMR 3.02(2), payment of benefits under §§ 31, 34, 34A or 35, within 5 years of the date of injury shall preclude applicability of § 35C. Therefore, insurers need to make sure that no compensation has been paid within 5 years of the date of injury.

Motion to join the Trust Fund

Not every party has standing to join the Workers' Compensation Trust Fund. An insurer who is representing an employer who has chosen to opt-out of participation in the Trust Fund can't join the Trust Fund.

When the Trust Fund gets involved with § 35C claims

The Workers' Compensation Trust Fund is brought into a MGL c. 152 § 35C case by a Motion to Join which is filed by an insurer. MGL c. 152 § 65(2)(b) allows for reimbursements by the Trust Fund to an insurer for the adjustments to the compensation under MGL c. 152 § 35C.

When to file a Motion to Join the Trust Fund

At the earliest convenience. More specifically, it is appropriate to join the Workers' Compensation Trust Fund at or prior to conference. If you represent the insurer with the last date of injury, the sooner the joinder is accomplished the better. Joinder at the earliest possible date can help to facilitate negotiations, which in turn can promote a resolution in the most expeditious manner.

For more information on joinder, see 452 CMR 1.20.

Serving a joinder on the Trust Fund

The motion is filed with the judge assigned to the case. In addition, the motion should be sent to the Office of Legal Counsel for the Trust Fund at the Department of Industrial Accidents by fax, mail or any other approved method of service as provided by the Rules of Civil Procedure.

Please note: The insurer should also give notice of an upcoming date if there is a proceeding scheduled on the claim.

What the Trust Fund does after receiving the joinder

The motion will be assigned to an attorney from the Office of Legal Counsel who will appear at the next scheduled proceeding.

Types of pleadings that need to be filed

The moving party should file a motion for joinder which should include:

  • Names of the parties
  • Procedural history
  • Basis for joinder
  • Narrative of the claim
  • Certificate of Service

Also, any existing claims with Department of Industrial Accidents Board numbers should be included.

When the joinder is approved

The Workers' Compensation Trust Fund gets its own Department of Industrial Accidents Board Number, which is separate and distinct under MGL 152, c. § 35C.

Rights of the insurer against the Trust Fund

The Workers' Compensation Trust Fund is only involved for MGL c. 152 § 35C purposes if held liable for benefits to the employee or claimant.

Effects of settling a case

If there is a settlement, then the settlement with the claimant closes all rights the claimant and all insurers have against the Workers' Compensation Trust Fund by a Release and Waiver of all claims.

Release and waiver

A Release and Waiver signed by all parties in a case closes liability with all insurers and the injured worker.

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