Preparing for the reviewing board

The best way to prepare your case before the reviewing board

The reviewing board

The reviewing board is made up of 2 panels of 3 administrative law judges (ALJs). The panels function as the appellate body of the Department of Industrial Accidents. Decisions are formally published.

The reviewing board presides over:

After the administrative judge makes their hearing decision, any aggrieved party can request review of the decision with the reviewing board. MGL c. 152, § 11C. This appeal must be made within 30 days of the filing date of the hearing decision. The reviewing board may only reverse the decision of an administrative judge under certain limited circumstances, covered in §11C, which provides that reversals may be allowed if it is determined that the decision is:

  • Beyond the scope of the judge's authority,
  • Arbitrary or capricious, or
  • Contrary to law.

The reviewing board may recommit a decision to an administrative judge for further findings of fact when appropriate. Findings of witness credibility are made by the administrative judge following a hearing.

The reviewing board is empowered to affirm decisions summarily without discussion of the issues.

Oral arguments are scheduled at the discretion of the reviewing board, typically in cases of broad impact, but briefs must be filed on all appeals.

Practitioners looking to succeed on appeal should determine whether or not the administrative judge identified all issues and gave the grounds for the decisions made regarding each issue. The administrative judge must make clear findings of fact, particularly when there is conflicting testimony.

The procedures and requirements of appeals to the reviewing board are outlined in 452 CMR 1.15.

Notice of appeal

Any appeal from a decision of an administrative judge must be filed with the department on a Form 112 - Appeal To The Reviewing Board no later than 30 days from the filing date of the decision, unless a late appeal is permitted by the Director as provided by MGL c. 152, § 11C.

A copy of the appeal shall be served by mail, or in hand on counsel for each party, or on each unrepresented party.

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 MGL c. 152, § 11C shall be 30% of the state average weekly wage (SAWW) in the Commonwealth at the time of payment.

Any request for a waiver of the filing fee based on indigence shall be filed on Form 112A - Affidavit In Support Of Request For Waiver Of Filing Fee Under § 11C.

Note: The SAWW as of October 1, 2016 is $1,291.74, yielding a filing fee of $ 387.52.

Requirements an administrative law judge may make

An administrative law judge may require counsel or pro se litigants to appear for a conference to consider:

  • Waiver of the filing fee,
  • Narrowing of the issues on appeal,
  • Whether oral argument will be held, and
  • Any other matters that may help in the disposition of the appeal.

Briefs

Unless otherwise ordered by the reviewing board, a brief shall be filed by the appellant in all cases in line with the following requirements:

  1. Content. The brief of the appellant shall contain under appropriate headings and in the order below:

    • A statement of the issues for review; a statement of the case, which will first briefly indicate the nature of the case, the course of proceedings, and its disposition following conference and hearing. A statement of the facts relevant to the issues for review, with appropriate references to the record;

    • 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;
       
    • A short conclusion stating the precise relief sought; and
       
    • The names, addresses and telephone numbers of counsel and their firms.
       
  2. 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 MGL 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.
     
  3. 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.
     
  4. Amicus Curiae. An amicus curiae shall notify the reviewing board of its intention to file a brief.
     
  5. Response Briefs. The brief of the appellee, cross-appellant, or amicus curiae shall conform to 452 CMR § 1.15(4)(a) 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.
     
  6. Designation of Parties. In their briefs and oral arguments, counsel shall keep to a minimum references to parties by such designations as "appellant" and "appellee," instead using the designation used in the administrative judge's decision, the actual names of the parties, or descriptive terms such as "the employee," "the employer," and "the insurer."
     
  7. 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 purposes of complying with the time requirements for the filing of briefs.
     
  8. 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.
     
  9. Copies of Briefs. The original and 4 copies of each brief shall be filed with the reviewing board unless the reviewing board by order directs 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.

Dismissal of appeal

The reviewing board may dismiss an appeal, or cross-appeal, for the following reasons:

  • Failure of the appellant, without good cause, to file a brief, unless filing has been waived by the reviewing board;
  • Failure of the appellant, or cross-appellant, to submit a filing fee or a fee waiver form;
  • Failure of the appellant, or cross-appellant, to appear at oral argument without good cause.

Oral Arguments

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 the oral argument, a party may request additional time, which will be granted only under unusual circumstances.

Withdrawal of appeal

The parties to any case pending before the reviewing board will notify the reviewing board in writing of any settlement, withdrawal of appeal, adjustment or other disposition.

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