Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 17B of chapter 6A of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The following agencies are hereby declared to be within the executive office of labor: the department of labor and industries, the department of industrial accidents; the minimum wage commission; and health, welfare and retirement trust funds board.

SECTION 2. Section 17C of said chapter 6A, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

The department of industrial accidents and all other state agencies within said department are hereby declared to be within the executive office of labor, but shall not be subject to its jurisdiction thereof.

SECTION 3. Sections fourteen to twenty-four, inclusive, of chapter twenty-three of the General Laws are hereby repealed.

SECTION 4. The General Laws are hereby amended by inserting after chapter 23D the following chapter:- `tuc CHAPTER 23E. DEPARTMENT OF INDUSTRIAL ACCIDENTS.

Section 1. There shall be a department of industrial accidents under the supervision and control of a commissioner of industrial accidents, hereinafter in this chapter and in chapter one hundred and fifty-two, called the commissioner. The governor shall appoint the commissioner to serve for a term coterminous with that of the governor. Upon the expiration of the term of office of the commissioner, he may be reappointed by the governor. The position of commissioner shall be classified in accordance with section forty-five of chapter thirty and the salary shall be determined in accordance with section forty-six C of said chapter thirty. The commissioner shall devote his full time to the duties of his office and shall not engage in other employment or business activities during regular business hours.

Section 2. The commissioner shall be the executive and administrative head of the department. He shall have charge of the administration of the department and enforcement of all laws, rules and regulations which it is the duty of the department to administer and enforce. He shall have authority pursuant to the provisions of chapter thirty A to issue any regulation for the enforcement and administration of the provisions of this chapter and chapter one hundred and fifty-two. The commissioner shall prepare an annual operating budget and other funding requirements and requests pursuant to said chapter one hundred and fifty-two to be submitted to the secretary of labor.

Section 3. There shall be within the department a division of administration, under the supervision and control of a director of administration and a division of dispute resolution, under the supervision and direction of a director of dispute resolution, both of whom shall be appointed by the commissioner.

There shall also be within the division of administration a first deputy director of administration who shall perform the duties of the director of administration in the absence of the director of administration and who shall have responsibility for the budget required by chapter twenty-nine. There shall also be within the division of dispute resolution a deputy director of dispute resolution who shall perform the duties of the director of dispute resolution in the absence of said director and who shall also be responsible for scheduling within said division.

Section 4. There shall be within the division of dispute resolution an industrial accident board, in this chapter and in chapter one hundred and fifty-two called the board, which shall consist of sixteen members, who shall be administrative judges appointed by the governor with the advice and consent of the council, not more than nine of whom shall be from the same political party, for six year terms. Upon the expiration of the term of office of a member, such member or his successor shall be appointed or reappointed, as the case may be, for a term of six years by the governor with the advice and consent of the council, except that any member appointed to fill a vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the unexpired portion of such term. Nominees shall be submitted to the governor from a nominating panel under procedures to be established by the governor. Prior to the expiration of the term of office of a member, the conduct of said member shall be reviewed by such nominating panel, which shall recommend whether said member shall be retained in office. Such review shall include a report from the commissioner.

Notwithstanding any provision of chapter thirty to the contrary, the commissioner shall be placed in Job Group M-X, as set forth in section forty-six C of chapter thirty, and the members of the board shall be placed in Job Group M-IX, as set forth in said section forty-six C at not less than Step 7, of the management salary schedule, the first deputy director of administration and the deputy director of dispute resolution shall be placed in Job Group M-VII, as set out in said section forty-six C, at not less than Step 7.

Members of the board shall devote their full time during ordinary business hours to the respective duties assigned them and shall not engage in outside employment or business activities during such hours.

Section 5. There shall be within the division of dispute resolution an industrial accident reviewing board, in this chapter and in chapter one hundred and fifty-two called the reviewing board which shall consist of four members, not more than two of whom shall be of one political party. Members of the reviewing board shall be administrative law judges appointed by the governor with the advice and consent of the council, for six year terms. Upon the expiration of the term of office of a member, such member or his successor shall be appointed or reappointed, as the case may be, for a term of six years by the governor with the advice and consent of the council, except that any member appointed to fill a vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the unexpired portion of such term. Nominees shall be submitted to the governor from a nominating panel under procedures to be established by the governor. Prior to the expiration of the term of office of a member, the conduct of said member shall be reviewed by such nominating panel, which shall recommend whether said member shall be retained in office. Such review shall include a report from the commissioner.

Notwithstanding any provision of chapter thirty to the contrary, the members of the reviewing board shall be placed in Job Group M-X, as set forth in section forty-six C of said chapter thirty. Reviewing board members shall devote their full time during ordinary business hours to the duties of their office and shall not engage in any other employment or business activities during such hours.

Section 6. The industrial accident board and the industrial accident reviewing board shall be under the supervision and administrative control of the director of dispute resolution. The director shall direct and supervise the activities of all members of the board and the reviewing board. The commissioner shall assign such necessary support staff to the division as he deems necessary. The director shall cause a statistical list to be maintained of all matters heard or conferred on by each board member along with a list of conference orders and decisions filed by each member and all lump sum settlements approved by the reviewing board and at the end of each month shall cause said list to be published forthwith and made available for inspection by the public. Every decision and order of any member of the board and every decision by the reviewing board shall be open to the public. Decisions of the reviewing board shall be indexed and published. Members of the industrial accident board and the industrial accident reviewing board shall be subject to the provisions of chapters two hundred and sixty-eight A and two hundred and sixty-eight B.

Section 7. If the workload of the board so requires, the governor with the advice and consent of the council, may, upon request of the commissioner, recall any former member of the board to sit as a member in any conference or hearing conducted under the provisions of chapter one hundred and fifty-two. Such former member when recalled, shall be assigned to such proceedings as the commissioner shall determine, and when so recalled and assigned he shall have all the powers and duties of a member of the board. The period for which a former member may be recalled shall not exceed one hundred and eighty days, but the governor may upon the advice and consent of the council, upon request of the commissioner once again recall the member for one additional period of time not to exceed ninety days. No former member of the board shall represent any person before the board during the period for which he has been recalled as a member or decide cases in which he had an interest or involvement during his absence from the board. A former member so recalled shall be paid by the commonwealth in addition to any pension or retirement allowance received by him, the amount by which the regular salary of a member of the board exceeds such pension of retirement allowance which he is entitled to receive for the period.

Section 8. The commissioner shall have authority to initiate proceedings for the removal of a board or reviewing board member when the commissioner is of the opinion that the member has been guilty of misconduct, material neglect of duty, or incompetence in the conduct of office. Upon recommendation of the commissioner, the governor shall commence an investigation of the member's record and practices. Upon completion of the investigation, the governor may, with the advice and consent of the council remove such member for misconduct, material neglect of duty, or incompetence in the conduct of his office. The substance of the decisions of a member in individual cases and in all cases in which the member sits shall not constitute cause for removal.

The member shall be provided with a written statement of the grounds for removal and a summary of the investigation by the governor. Removal procedures shall afford confidentiality, subject to considerations of due process and the provisions of section ten of chapter sixty-six. Any member so removed shall have the right to appeal his removal to the superior court department of the trial court.

Section 9. There shall be within the division of administration an office of claims administration. In addition to any duties assigned to it by the director of administration, the office shall receive and maintain reports of injury and other reports required under chapter one hundred and fifty-two, and shall provide claims conciliation services.

Section 10. There shall be within the division of administration an office of education and vocational rehabilitation. Said office shall perform such functions of the department relating to the provisions of chapter one hundred and fifty-two and as the director of administration may from time to time determine, and shall provide such vocational rehabilitation services as required by said chapter one hundred and fifty-two. Said office shall also maintain a toll-free number to respond to any inquiries regarding workers' compensation.

The office shall prepare and make available to employers and employees informational materials which explain the provisions of the worker's compensation law in the commonwealth, and shall update such materials upon the passage of any legislation which substantially alters said laws.

Section 11. (1) There shall be within the division of administration an office of insurance. The office shall perform the duties of the division with respect to the enforcement of the provisions of chapter one hundred and fifty-two relating to insurers and self-insurers, and as the director of administration may from time to time require. The office shall also perform the duties of the division with respect to the operation of the special fund, as required by section sixty-five of said chapter one hundred and fifty-two.

(2) The office of insurance shall examine on a continuous basis the case files in possession of the department in order to identify questionable claims handling techniques, questionable patterns of claims, or a pattern of repeated unreasonable controverted claims by employers or insurers and shall certify its finding to the commissioner of insurance. Only such questionable techniques, patterns, or repeated unreasonably controverted claims as constitute a general business practice of a carrier or employer in the judgment of the office of insurance shall be certified in its findings by the office to the commissioner of insurance. Upon receipt of any such certification, the commissioner of insurance and the office of insurance shall take appropriate action as necessary to terminate such general business practices. Upon receipt by the office of insurance of a written request for an investigation of an insurer or employer concerning such questionable techniques, patterns, or repeated unreasonable controverted claims, the said office of insurance shall investigate such insurer or employer and shall certify its findings to the said commissioner of insurance and send a copy of such certified findings to the party who requested such investigation.

(3) The office of insurance shall publish annually a report which indicates the promptness of first payment of compensation records of each insurer or self-insuring employer. Such annual report may also include information concerning other aspects of claims procedures. A copy of the report shall be submitted to the commissioner of insurance, who shall take appropriate action to insure, where warranted, the prompt payment of compensation.

(4) The office of insurance shall promulgate rules providing guidelines to insurers and self-insuring employers concerning the behavior that may be construed as questionable claims handling techniques, questionable patterns of claims, repeated unreasonably controverted claims, or poor payment practices.

Section 12. There shall be within the division of administration an office of administration and data processing. The office shall be responsible for providing the administrative services to the division and shall perform such additional duties as the director of administration may from time to time require. Said office shall receive requests for data from the general court and advisory council and shall annually report its statistical findings to the advisory council and to the clerks of the house and senate of the general court.

Section 12A. There shall be within the division of administration an office of safety. The office shall assist in the dissemination of information on health and safety in the workplace to employees and employers in the commonwealth, shall establish and supervise programs for the education and training of employees and employers in the recognition, avoidance and prevention of unsafe or unhealthful working conditions in employment, and shall perform such duties as the director of administration requires. The office shall consult with and advise employees and employers as to the effective means of preventing occupational injuries and illnesses.

Section 13. The office of claims administration, the office of education and vocational rehabilitation, the office of insurance, the office of administration and data processing, and the office of safety shall be under the supervision and control of the director of administration, who shall be the executive administrative head of said office. The director shall direct and supervise the activities of all employees of the division of administration.

Section 14. The commissioner shall establish four permanent regional offices, and shall appoint a least one management level employee as supervisor of each such office, and such other officers, clerks, and assistants as are necessary for the discharge of duties in connection with such offices.

Section 15. There is hereby established an advisory council on workers' compensation in this chapter and in chapter one hundred and fifty-two called the advisory council to be appointed by the governor. The voting membership of said council shall be composed of five members representing employers in the commonwealth, at least one of whom shall represent manufacturing classifications, at least one of whom shall represent small business, at least one of whom shall represent contracting classifications, and at least one of whom shall represent self-insurers, and five members representing employees, all of whom shall be members of a duly recognized and independent employee organization, council, or union, and at least one of whom shall be a disabled worker. At least one employer representative shall be from a list of nominees provided by Associated Industries of Massachusetts. At least one employee representative shall be from a list of nominees provided by the Massachusetts AFL-CIO. The governor shall also appoint one member representing the workers' compensation claimants' bar, one member representing the commonwealth's medical providers, and one member representing vocational rehabilitation providers, none of whom shall be voting members. The executive secretary of labor and the executive secretary of economic affairs shall be ex officio, nonvoting members. Any person appointed to fill a vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the unexpired portion of such term. The chairman and the vice-chairman of such advisory council, one of whom shall be an employee representative and one of whom shall be an employer representative, shall be appointed from among voting members by the governor for two year terms. Such appointees shall not succeed themselves as chairman or vice-chairman. No member of said advisory council shall be subject to chapter thirty-one. Members shall receive their traveling and other necessary expenses incurred in the performance of their duties. Such expenses shall be paid from the special fund established in section sixty-five of chapter one hundred and fifty-two. Meetings of said advisory council shall be called by the chairman or upon petition by a majority of voting members. Such meetings shall be subject to the provisions of section eleven A? of chapter thirty A. Said advisory council shall take no action pursuant to its authority under this chapter or said chapter one hundred and fifty-two unless a quorum of its voting members are present.

The presence of seven voting members of the advisory council, at least two of whom shall be representatives of employees, shall constitute a quorum. No action shall be taken by the advisory council without the affirmative vote of at least seven members.

Section 16. The advisory council shall appoint such personnel as are necessary for the proper discharge of its duties, subject to the approval of the secretary of labor. The staff of the advisory council shall be funded from monies collected for the special revenue fund in accordance with the provisions of section sixty-five of said chapter one hundred and fifty-two. The advisory council may expend for personnel and office expenses funds appropriated to the department for that purpose.

Section 17. The advisory council shall monitor, recommend, give testimony, and report on all aspects of the workers' compensation system, except the adjudication of particular claims or complaints. Its powers include the issuance of reports, recommendations for legislation, policies and programs, the conducting of research, the collecting of data from public and private sources, and powers granted under the provisions of by chapter one hundred and fifty-two.

The advisory council shall report at least annually in writing by the last day of the fiscal year of the commonwealth to the executive secretary of labor on the state of the workers' compensation system, and shall cause a copy of such report to be filed with the clerks of the house and senate of the general court who shall send copies of such report to the joint committee on commerce and labor and the house and senate committees on ways and means. The report shall include an evaluation of the operations of the department along with recommendations for improving the workers' compensation system. Said advisory council shall also review the annual operating budget of the department, as prepared by the commissioner and as submitted to the executive secretary of labor. Upon the affirmative vote of at least seven voting members, the advisory council may submit its own recommendation for the total operating budget to the secretary of labor.

The advisory council shall make an investigation and study of the costs and benefits associated with the institution of competitive rating among workers' compensation insurance carriers. Such study shall consider the effect of open competition on premiums within the various classes of employers and within different geographical regions of the commonwealth and include recommendations concerning the advisability of adopting the practice of competitive rating within test classes or regions for a specific period of time. The council shall also make an investigation and study of the use of credits against insurance premiums and against assessments levied pursuant to section sixty-five of chapter one hundred and fifty-two that encourage rehabilitation and the rehiring of injured workers, and that provide safe workplaces. The council shall also make a study of the practicability of instituting a system by which parties to a dispute under said chapter one hundred and fifty-two may schedule proceedings before the industrial accident board by the use of a "mark up", so-called, or similar system. The advisory council shall also make a study of occupational diseases and their relationship to the workers' compensation system.

The advisory council shall also make a continuous investigation and study of worker compensation issues involving public employees, including, but not limited to, the circumstances of public employees not subject to the workers compensation law, and problems resulting from the claims processing time periods for public employees.

The advisory council may expend, for the legal, actuarial, research, clerical, and other expenses involved in the completion of such investigations and studies, such sums as may be appropriated therefor.

The costs of such investigations studies shall be paid from the special fund created under said section sixty-five of said chapter one hundred and fifty-two. Said council shall file the results of its investigations and studies, and its recommendations, if any, together with any drafts of legislation necessary to carry its recommendations into effect with the governor and with the clerks of the house and senate of the general court within eighteen months of its first meeting.

SECTION 5. Paragraph (2) of section 1 of chapter 30A of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out, in line 24, the words "industrial accidents of the department of labor and industries" and inserting in place thereof the words:- dispute resolution of the department of industrial accidents.

SECTION 6. Section fifty-one B of chapter one hundred and forty-nine of the General Laws is hereby repealed.

SECTION 6A. Subsection (d) of section 25 of chapter 151A of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- Any period with respect to which he is receiving or has received or is about to receive compensation for total disability under the workers' compensation law of any state or under any similar law of the United States, but not including payments for certain specified injuries under section thirty-six of chapter one hundred and fifty-two; or payments for similar specified injuries under workers' compensation laws of any state or under any similar law of the United States.

SECTION 7. Section 1 of chapter 152 of the General Laws, as so appearing, is hereby amended by striking out paragraph (1A) and inserting in place thereof the following paragraph:-

(1A) "Commissioner", the commissioner of the department of industrial accidents established under chapter twenty-three E.

SECTION 8. Said section 1 of said chapter 152, as so appearing, is hereby amended by striking out paragraph (2) and inserting in place thereof the following paragraph:-

(2) "Department", the department of industrial accidents.

SECTION 9. Paragraph (4) of said section 1 of said chapter 152, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

"Employee", every person in the service of another under any contract of hire, express or implied, oral or written, excepting (a) masters of and seamen on vessels engaged in interstate or foreign commerce, (b) persons employed to participate in organized professional athletics, while so employed, if their contracts of hire provide for the payment of wages during the period of any disability resulting from such employment, (c) a salesperson affiliated with a real estate broker pursuant to an agreement which specifically provides for compensation only in the form of commissions earned from the sale or rental of real property, (d) a salesperson who is a direct seller of consumer products on a buy-sell or deposit-commission basis other than in a retail establishment, all of whose remuneration is directly related to sales rather than amount of time worked and whose services are performed pursuant to a written contract providing that the direct seller will not be treated as an employee for Federal tax purposes, (e) a person who operates a taxicab vehicle which is leased by such person from a taxicab company pursuant to an independent contract which specifically provides for a rental fee or other payment to the owner of such taxicab vehicle which is in no way related to the taxicab fares collected by such person; and provided, further, that such person is not treated as an employee for Federal tax purposes, (f) persons employed by an employer engaged in interstate or foreign commerce but only so far as the laws of the United States provide for compensation or liability for their injury or death, and (g) a person whose employment is not in the usual course of the trade, business, profession or occupation of his employer, but not excepting a person conclusively presumed to be an employee under section twenty-six.

SECTION 10. Paragraph (5) of said section 1 of said chapter 152, as so appearing, is hereby amended by adding the following paragraph:-

A corporation and its subsidiary corporations shall be considered as one entity for the purposes of a self-insurance license; provided, however, that such corporation has signed as guarantor to insure payment of claims by its subsidiary corporations.

SECTION 11. Paragraph (7A) of said section 1 of said chapter 152, as so appearing, is hereby amended by adding the following sentence:- "Personal injury" shall not include any injury resulting from an employee's purely voluntary participation in any recreational activity, including but not limited to athletic events, parties, and picnics, even though the employer pays some or all of the cost thereof. Personal injuries shall include mental or emotional disabilities only where a contributing cause of such disability is an event or series of events occurring within the employment.

SECTION 12. Said section 1 of said chapter 152, as so appearing, is hereby further amended by striking out paragraph (8) and inserting in place thereof the following paragraph:-

(8) "Reviewing board", any three member panel of the reviewing board established under section five of chapter twenty-three E.

SECTION 13. Said section 1 of said chapter 152, as so appearing, is hereby further amended by adding the following three paragraphs:-

(9) "Average weekly wage in the commonwealth", for dates subsequent to October fourth, nineteen hundred and seventy, the average weekly wage as determined according to the provisions of subsection (a) of section twenty-nine of chapter one hundred and fifty-one A and promulgated by the director of the division of employment security, on or before October first of each year. For dates prior to October fourth, nineteen hundred and seventy, the state average weekly wage for all employees covered under the employment security law as calculated by said director of the division of employment security during the year of such date.

(10) "Maximum weekly compensation rate", one hundred per cent of the average weekly wage in the commonwealth.

(11) "Minimum weekly compensation rate", twenty per cent of the average weekly wage in the commonwealth.

SECTION 13A. Said section 1 of said chapter 152, as so appearing, is hereby further amended by adding the following paragraph:-

(12) "Vocational rehabilitation", nonmedical services reasonably necessary at a reasonable cost to restore a disabled employee to suitable employment as near as possible to pre-injury earnings. Such services may include vocational evaluation, counseling, education, workplace modification, and retraining, including on-the-job training or training for alternative employment with the same employer, and job placement assistance. It shall also mean reasonably necessary related expenses.

The department shall promulgate rules concerning the qualifications and performance of any person, agency or institution providing vocational rehabilitation services pursuant to this chapter. The commissioner may penalize, disqualify, or suspend a vocational rehabilitation service provider from receiving payment for services rendered under this chapter, or from providing future services under this chapter, if the commissioner or his designee determines that the provider has violated any part of this chapter or rule adopted under this chapter. The commissioner shall have the sole authority to make determinations pursuant to this paragraph; provided, however, that aggrieved parties shall have a right to appeal to the superior court.

SECTION 14. Section 2 of said chapter 152, as so appearing, is hereby amended by striking out, in line 1, the word "division" and inserting in place thereof the word:- department.

SECTION 15. Section four of said chapter one hundred and fifty-two is hereby repealed.

SECTION 16. Said chapter 152 is hereby further amended by striking out section 5, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 5. The commissioner shall promulgate rules and regulations consistent with this chapter for carrying out the functions of the department.

SECTION 17. Said chapter 152 is hereby further amended by striking out section 6, as so appearing, and inserting in place thereof the following three sections:-

Section 6. Within five days, not including Sundays and legal holidays, of receipt of notice or knowledge of any injury resulting in loss of five or more days of work for any employee, the employer shall furnish notice of the injury to the division of administration, the employee, and the insurer. The notice shall be submitted on a form prescribed by the division and shall contain the name and nature of the business of the employer, the name, age, sex and occupation of the injured employee, the date of such lost-time injury, the nature, circumstances and cause of the injury, and such additional information as the division shall prescribe. The form also shall include a summary of the employee's rights and obligations under this chapter. The department shall provide by rule for a quarterly reporting system for those cases involving injuries in which the employee does not lose more than four days of work.

Additional reports may be required from employers, insurers and medical services providers with respect to such injury and of the condition of such employee, including copies of medical, hospital, and rehabilitation reports and records, and the payments made or to be made for compensation shall be filed with the division of administration at such times and in such manner as the division may prescribe.

The division of administration shall prepare statistical summaries of reports filed under this section.

The provisions of this section shall apply also to the head of each employing board, commission and department of the commonwealth and of the several counties, cities, towns and districts subject to the provisions of section sixty-nine and copies of the report hereby required shall be furnished to the appropriate retirement board, if any and to the agent set forth in section seventy-five or the insurer, if any.

Any person who violates the provisions of this section shall be punished by a fine of one hundred dollars for each such violation.

Section 6A. Upon receipt of notice of injury from the employer, or any other indication of a compensable injury, the division of administration shall immediately mail, post paid, to the injured worker an informational brochure as prescribed by the division which sets forth in clear and understandable language a summary statement of the rights, benefits, and obligations of injured workers under this chapter. The division shall monitor the furnishing of benefits by the employer or insurer to ascertain that correct benefits are being provided in cases accepted as compensable injuries. In the event of controversy or dispute, the division shall attempt to resolve the dispute promptly and informally, and, upon failing to do so, shall promptly forward a claim form to the employee.

Section 6B. Any proceeds resulting from the imposition of any fine levied under this chapter shall be paid into the Special Revenue Fund, established pursuant to section sixty-five.

SECTION 18. Said chapter 152 is hereby further amended by striking out section 7, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 7. (1) Within fourteen days of receipt of the employer's notice of injury, the insurer shall either commence payment of weekly incapacity benefits under section thirty-four or thirty-five to the employee or shall notify the division of administration, the employer, and the employee by certified mail of its refusal to commence the payments and of its intent to contest a claim should the employee file a claim with the department. The notice shall specify the grounds and factual basis for the refusal to commence payment of such benefits and intention to contest, and shall state that in order to secure benefits the employees shall file a claim with the department within any time limits provided under this chapter. Any grounds and basis for noncompensability specified by the insurer shall be the sole basis of the insurer's defense on the issue of compensability in any subsequent proceeding, unless based upon newly discovered evidence.

(2) If an insurer fails to commence such payment or make such notification within said fourteen days, it shall pay to the employee an amount equal to the compensation due under section thirty-four or thirty-five as calculated from the date that the insurer first received the employer's report of injury as required under section six until the date that compensation is actually paid, plus a penalty of twenty per cent of such compensation. Such penalty may be waived if the division of administration finds that the failure to comply with said fourteen day requirement was due to events not within the control of the insurer or its agents. No amount paid as a penalty under this section shall be included in any formula utilized to establish premium rates for workers' compensation insurance.

SECTION 19. Said chapter 152 is hereby further amended by striking out section 7C, as so appearing, and inserting in place thereof the following section:-

Section 7C. Any party appearing before the division of dispute resolution may be heard in person, or may be represented by an attorney or by any other person designated by such party; provided, however, that nothing in this section shall be deemed to supersede the provisions of section twenty-five D. No person who is not an attorney shall be compensated for representing a claimant in such a proceeding; provided, however, that nothing in this section shall bar payment by a labor organization, employee association, or insurer of any payment of regular wages or salary to a full time employee for time spent in representing a claimant.

SECTION 20. Section seven E of said chapter one hundred and fifty-two is hereby repealed.

SECTION 21. Said chapter 152 is hereby further amended by striking out section 8, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 8. (1) An insurer who begins payments of benefits in a timely fashion may make such payments for a period of sixty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such sixty day period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days written notice of its intent to stop payments and contest any claim filed. The notice shall specify the grounds and factual basis for stopping payment of benefits and intention to contest and shall state that in order to secure benefits the employee shall file a claim with the department within any time limits provided by this chapter.

Any grounds and basis for noncompensability specified by the insurer shall be the sole basis of the insurer's defense on the issue of compensability, unless based on newly discovered evidence. The insurer remains at all times obligated to pay all benefits due the employee under this chapter within fourteen days of knowledge from any source that such benefits are due.

(2) An insurer may terminate payments for temporary total disability pursuant to section thirty-four after such sixty day period only if such action is based upon:

(a) return to actual employment; provided, however, that the department may by regulation provide for a reasonable time period after such return to employment during which payments may be resumed for such employee if upon such return his disability renders him incapable of performing such work; and provided, further, that, if due, compensation shall be paid under section thirty-five; or

(b) a medical report from the treating physician indicating that the employee is capable of return to the job held at the time of injury, and a written report from the employer that such job is open and has been made available to the employee; or

(c) an order of the board or reviewing board.

(3) An insurer may terminate or modify payments for partial disability pursuant to section thirty-five after such sixty day period only if such action is based upon:

(a) actual earnings of the employee during each week; or

(b) an order of the board or reviewing board.

(4) An insurer who begins payments under section seven and pays under this section for sixty days or more, without terminating payments or contesting liability, may, no sooner than ninety days following filing a complaint for termination or reduction of benefits under section thirty-four, thirty-four A or thirty-five, if no order or decision has issued within such ninety day period, request the division of dispute resolution to appoint an impartial physician to examine the employee. The director of the division of dispute resolution shall, within seven days of such request, appoint a physician from the appropriate roster to conduct an examination of the employee and make a report within fourteen days. If such report contains evidence of increased capability to work the insurer may reduce or terminate benefits in accordance with such report, pursuant to the provisions of section thirty-five D. In such instances, if the requirements of this subsection have been complied with, when an order is issued on the insurer's complaint, if such order requires that additional compensation be paid, double back benefits shall be paid the employee, but no penalty shall be assessed upon the insurer.

(5) Except as specifically provided above, if the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty payment equal to twenty per cent of the additional compensation due on the date of such finding. No amount paid as a penalty under this section shall be included in any formula utilized to establish premium rates for workers' compensation insurance. No termination or modification of benefits not based on actual earnings or an order of the board shall be allowed without seven days written notice to the employee and the department.

SECTION 22. Section eight A of said chapter one hundred and fifty-two is hereby repealed.

SECTION 23. Section nine of said chapter one hundred and fifty-two is hereby repealed.

SECTION 24. Said chapter 152 is hereby further amended by striking out section 10, as appearing in the 1984 Official Edition, and inserting in place thereof the following two sections:-

Section 10. No written claim for benefits shall be required or permitted to be filed until such time as the employee believes that there are benefits presently due from and unpaid by the insurer. Any claim for benefits shall be filed with the division of administration on a form prescribed by the division, and shall specifically state the benefits claimed to be due and unpaid. On receipt of a claim for compensation or a complaint from the insurer requesting a modification or discontinuance of benefits, the division of administration shall notify the parties that it is in receipt of such claim or complaint, and may request the parties to appear and submit relevant information. The division shall attempt to resolve the subject of the claim or complaint by informal means and the parties shall cooperate with the division. Unless the party filing the claim or complaint fails to appear on request or provide requested information in its possession, the division of administration shall forward the claim or the complaint and the case file to the division of dispute resolution within ten days of initial receipt of such claim or complaint. In each instance in which a claim for compensation is referred to the division of dispute resolution, the insurer shall pay a fee of thirty per cent of the average weekly wage in the commonwealth. Such fee shall be paid into the Special Revenue Fund established pursuant to section sixty-five.

Section 10A. Upon referral from the division of administration of a claim for compensation or a complaint requesting a modification of discontinuance of benefits, the case shall be immediately assigned by the director of dispute resolution to a board member. The board member shall require the parties to appear before him within twenty-eight days of receipt of the case by the division of dispute resolution for a conference, at which time the issues in dispute shall be identified and all evidence to be presented shall be specified. If, on the evidence available at the conference, or if there is no conference within twenty-eight days, based on evidence available at the time, the member determines that weekly compensation or medical benefits are due, he shall forthwith file a written temporary order for such compensation or benefits. If on the evidence available at the conference, or if there is no conference with twenty-eight days, based on evidence available at the time, the member determines that weekly compensation or medical benefits should be modified or terminated, he shall forthwith file a written temporary order modifying or discontinuing weekly compensation or medical benefits. In any event, a hearing shall be held within forty-nine days of receipt of the case by the division of dispute resolution. Failure of a party to appear shall not prevent the issuance of an order. Any temporary orders shall become permanent upon receipt of notice by the member from both parties of an indication that they are satisfied with the provisions of such temporary order and in such instances any subsequent scheduled proceedings shall be cancelled.

SECTION 25. Said chapter 152 is hereby further amended by striking out section 11, as so appearing, and inserting in place thereof the four following sections:-

Section 11. At the hearing the member shall make such inquiries and investigations as he deems necessary, and may require and receive any documentary or oral matter not previously obtained as shall enable him to issue a decision with respect to the issues before him. Such decision shall issue within twenty-eight days of the conclusion of the hearing. Failure of a party to appear at a hearing shall not delay the issuance of an order.

The member conducting the hearing may grant a continuance only for reasons beyond the control of a party or his attorney. Any continuance shall be set forth in writing by the member and shall be compiled quarterly by the department and shall be submitted to the advisory council.

Section 11A. (1) With the assistance of the the medical consultant to the commission, the director of dispute resolution shall establish and periodically review and update separate rosters of duly qualified impartial physicians who are specialists in various medical fields, one of which shall be the field of mental and emotional disabilities.

(2) When any claim or complaint is dealing with incapacity benefits for an alleged mental or emotional disability is forwarded to the division of dispute resolution, the member may appoint an impartial physician from the appropriate roster to examine the employee and make a report. The report of the impartial physician in such a case shall, where feasible, contain a determination by such physician of whether or not a mental or emotional disability exists, of whether or not any such disability is total or partial and permanent or temporary, and of whether or not any such disability is of a kind whose contributing cause is likely to have been a work-related event or series of events. The determination by an impartial physician of the existence or nonexistence of a temporary or permanent, partial or total disability shall be prima facie evidence of the existence or nonexistence, as the case may be, of such a condition, in any subsequent proceeding. Each party shall have the right to engage a physician to appear, or be deposed, for the purpose of rebutting the report of the impartial physician. If a decision of a member or reviewing board is in favor of the employee, the reasonable fee of each such physician appearing on behalf of the employee shall be paid by the insurer.

(3) In any other proceeding in which medical evidence is required for the resolution of a dispute arising under this chapter, a member may appoint a physician from the appropriate roster to examine the claimant and to make a report. Failure of an employee to report to a physician appointed under this section, after due notice and without cause, shall constitute sufficient cause for a denial, discontinuance or modification of benefits, as the case may be.

(4) The fee for the service of any physician appointed by a member under this chapter shall be a reasonable amount approved by the commissioner, and shall be paid by the insurer directly to the physician promptly upon receipt of the approved bill.

Section 11B. Procedures within the division of dispute resolution shall be as simple and summary as reasonable. The commissioner shall promulgate rules providing for the use of depositions and interrogatories. In any proceeding under this chapter, the division shall give notice of the date, time, and place of the proceeding to all parties in interest. Any member of the board may subpoena witnesses, administer oaths, and examine such parts of the books and records of the parties to a proceeding as relate to questions before such member. The fee for attending as witness before the department or a member of the board shall be that provided for witnesses before the superior court department of the trial court. The superior court shall have jurisdiction to enforce the provisions of this section relating to the attendance and testimony of witnesses and the examination of books and records.

A member may upon the filing of a written request of any party appearing before him, together with interrogatories and cross-interrogatories, if any, request officers in other jurisdictions, having power and duties similar to those of a member of the board, to take depositions or testimony of persons or witnesses residing in such jurisdictions. On the return of any such deposition to the division it shall be forwarded to the appropriate member. A reasonable fee for services in connection with the taking of such depositions and the expenses thereof shall be assessed upon the requesting party.

The expenses for services in connection with the taking of depositions shall be paid by the party requesting that such witness be deposed or whose witness is ordered to be deposed; provided, however, that if the decision of the member or reviewing board is in favor of the employee, the cost of such proceeding shall be added to the amount awarded to the employee and be paid by the insurer under the provisions of this chapter.

The evidence at the hearing shall be taken both stenographically and with the aid of an electronic recording device operated by an employee of the department sworn to record the entire proceeding. Any party may copy the audio recording at the department at reasonable hours or require the department to provide a copy of such recording at no charge to such party after the conclusion of the proceeding. The original recording shall remain in the control of the department. Verbatim transcripts shall be made manually from the stenographic notes only if a certified copy of the proceedings is required by the reviewing board or a court of the commonwealth. Decisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each such decision. Decisions shall issue no more than twenty-eight days following the close of testimony, unless further extension is authorized in writing by the director of dispute resolution.

Section 11C. Any party aggrieved by a decision of a member after a hearing held pursuant to section eleven may, within thirty days of the date of such decision, appeal to the reviewing board. Appeals to the reviewing board must be accompanied by a fee of thirty per cent of the average weekly wage in the commonwealth, which shall be paid into the special fund pursuant to section sixty-five. Such fee may be waived by the reviewing board for indigent claimants. The reviewing board shall reverse the decision of a member only if it determines on the basis of such member's written opinion and on an examination of a written transcript of the hearing, that the member's decision is beyond the scope of his authority, arbitrary or capricious, contrary to law, or unwarranted by the facts. The reviewing board may weigh evidence, but may not review determinations by the member who conducted the hearing regarding the credibility of witnesses who have given testimony. No oral arguments shall be allowed except when explicitly requested by the reviewing board, but briefs shall be considered if seasonably submitted by a party. Decisions of the reviewing board shall be in writing, shall decide all issues presented, and shall be issued by the reviewing board no more than thirty days from the filing of the appeal and fee, unless an extension is authorized in writing by the director of dispute resolution.

SECTION 26. Said chapter 152 is hereby further amended by striking out section 12, as so appearing, and inserting in place thereof the following section:-

Section 12. (1) Whenever any party in interest presents a certified copy of an order or decision of a board member or of the reviewing board and any papers in connection therewith to the superior court department of the trial court for the county in which the injury occurred or for the county of Suffolk, the court shall enforce the order or decision, notwithstanding whether the matters at issue have been appealed and a decision on the merits of the appeal is pending. In the event that the order or decision is reversed on appeal, the enforcement order shall be deemed vacated and unenforceable from the date of such reversal. If the request for an enforcement order is presented to the superior court for the county of Suffolk, the court may, on motion of any party in interest, order the case removed to the superior court for the county in which the injury occurred.

(2) Any appeal from a decision by a reviewing board shall be taken pursuant to section fourteen of chapter thirty A, except that such appeal shall be filed with the appeals court of the commonwealth.

(3) In rendering an order or judgement under this section or following a rescript of the supreme judicial court after an appeal from such an order or judgement the court shall award costs to the prevailing party, to be assessed as in actions at law. This paragraph shall not authorize the awarding of costs to or against the industrial accident board or reviewing board.

(4) In the event of a judgement of the appeals court, the court may, on motion of either party, by a brief statement of facts agreeable to the parties, report questions of law raised by the decree to the supreme judicial court for determination.

(5) Immediately after the entry of a judgement under this section, whether final or interlocutory, the clerk of the court shall prepare and forward to the department and to the parties an attested copy of such judgement. Upon the entry of an interlocutory judgement under this section recommitting a case to the board, counsel for the parties shall immediately notify said board by appropriate motion for action in accordance with the requirements of such judgement.

SECTION 27. Said chapter 152 is hereby further amended by striking out section 12A, as so appearing, and inserting in place thereof the following section:-

Section 12A. If on appeal to the appeals court or the supreme judicial court pursuant to section twelve the claimant prevails, the court shall allow the claimant, in addition to the award in the judgement, an amount equal to the reasonable cost of his attorney's fees, briefs and other necessary expenses that result from the appeal. When any party in interest obtains an enforcement order from the superior court department of the trial court pursuant to said section twelve, the court shall also allow the party the reasonable cost of attorney's fees, briefs and other expenses provided for by this section.

SECTION 28. Said chapter 152 is hereby further amended by striking out section 13, as so appearing, and inserting in place thereof the following section:-

Section 13. (1) The rate of payment by insurers for health care services adjudged compensable under this chapter shall be established by the rate setting commission under the provisions of chapter six A.

No insurer shall be liable for hospitalization expenses, adjudged compensable under this chapter at a rate in excess of the rate set by the rate setting commission, or for other health services in excess of the rate established for that service by the rate setting commission. Nor shall any employee be liable for services adjudged compensable under this chapter which have been paid for at the rates established by the rate setting commission.

Except with respect to rates to be paid for health care services, as defined in said chapter six A, which shall be reviewable under said chapter six A, the commissioner shall by rule establish procedures for determining whether or not the charge for a health service is excessive. In order to accomplish this purpose, the commissioner shall consult with insurers, associations and organizations representing the medical and other providers of treatment services, and other appropriate groups. The charges for such health services shall be reasonable.

(2) The department shall review the clinical health care providers who render services to injured employees. This review shall be achieved by establishing a quality control system within the department. The commissioner may hire a medical consultant or consultants, full or part-time, to assist in the administration of this section. Any medical consultant shall be a physician licensed under the laws of the commonwealth.

Such medical consultant shall perform all duties assigned by the commissioner relating to the supervision of the total range of care of injured employees and shall also advise the department on matters on which the commissioner requests the consultant's advice.

The commissioner shall monitor the medical and surgical treatment provided to injured employees and the services of other health care providers, and shall also monitor hospital utilization as it relates to the treatment of injured employees. The monitoring shall include determinations concerning the appropriateness of the service, whether the treatment is necessary and effective, the proper costs of services, and the quality of treatment. The commissioner with the advice of the health care service board may penalize, disqualify, or suspend a provider from receiving payment for services rendered under this chapter if the commissioner or his designee determines that the provider has violated any part of this chapter or rule adopted under this chapter.

The commissioner shall have the sole authority to make determinations under this section; provided, however, that aggrieved parties shall have a right to appeal to the superior court.

(3) There is hereby created a health care services board composed of the commissioner or his designee as an ex officio member and chairman, two persons representing chiropractic and osteopathy, one person representing hospital administrators, one person representing physical therapists, and six physicians representing different medical specialties which the commissioner determines are the most frequently utilized by injured employees. The board shall also have one person representing employees, one person representing employers, and one person representing the public. Members shall be appointed by the commissioner for two-year terms. The board shall advise the commissioner on matters arising under this section.

SECTION 28A. Said chapter 152 is hereby further amended by inserting after section 13 the following section:-

Section 13A. (1) Whenever an insurer contests a claim for benefits, including unpaid medical bills, and then accepts liability for the claim, or files a complaint and then withdraws such complaint after said claim or complaint has been referred to the division of dispute resolution but prior to a conference pursuant to section ten A, the member to whom the case has been assigned shall approve a reasonable attorney's fee to be paid by the insurer sufficient to compensate the employee for the reasonable costs of counsel. Unless there is a finding of an unusual complexity of the dispute or of any untypical effort expended by the attorney, such fee shall be of an amount equal to one hundred and fifty per cent of the average weekly wage in the commonwealth, plus necessary expenses.

(2) Whenever an insurer (i) contests a claim for benefits, including unpaid medical bills or a request for a modification, and then accepts such claim after a conference has been held, but prior to the fifth day before the date set for a hearing; or (ii) is ordered to pay benefits by a temporary order, or (iii) brings any proceeding as to a modification or discontinuance of benefits which is withdrawn subsequent to a conference or in which the employee prevails pursuant to a temporary order, the member to whom the case has been assigned shall approve a reasonable attorney's fee to be paid by the insurer sufficient to compensate the employee for the reasonable costs of counsel. Unless there is a finding of an unusual complexity of the dispute or of any untypical effort expended by the attorney, such fee shall be of an amount equal to three times the average weekly wage in the commonwealth, plus necessary expenses.

(3) Whenever an insurer brings a complaint or contests a claim and (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing, the member or reviewing board shall approve a reasonable attorney's fee to be paid by the insurer sufficient to compensate the employee for the reasonable costs of counsel. Unless there is a finding of an unusual complexity of the dispute or of any untypical effort expended by the attorney, such fee shall be an amount equal to seven times the average weekly wage in the commonwealth, plus necessary expenses.

(4) Whenever an insurer appeals a decision of the board and the employee prevails in the decision of the reviewing board, said reviewing board shall approve a reasonable attorney's fee to be paid by the insurer sufficient to compensate the employee for the reasonable costs of counsel. Unless there is a finding of an unusual complexity of the dispute or of any untypical effort expended by the attorney, such fee shall be an amount equal to three times the average weekly wage in the commonwealth, plus necessary expenses.

(5) Whenever an employee appeals a decision of a member and such employee prevails in the decision of the reviewing board, a reasonable attorney's fee shall be paid by the employee to his attorney subject to the agreement between the employee and his counsel; provided, however, that in the event of a dispute as to the amount of the fee, a request for a determination may be filed with the reviewing board who shall determine such fee.

(6) Whenever an insurer and an employee agree to a settlement under section forty-eight, the attorney's fee shall be paid from the settlement in accordance with the following provisions:

(a) When the insurer and the employee reach such settlement prior to insurer acceptance of liability and prior to any determination by the board or reviewing board of insurer liability, such fee shall be no more than fifteen per cent of the amount of such settlement.

(b) When the insurer and the employee reach such settlement subsequent to such insurer's acceptance of liability or to any determination of the board or reviewing board that such insurer is liable for compensation, such fee shall be no more than twenty per cent of such settlement.

(7) No attorney's fee shall be paid under this chapter for services rendered any employee relative to any injury unless a claim, complaint, settlement request or other proceeding relative to such injury has at some time been referred to the division of dispute resolution.

SECTION 29. Said chapter 152 is hereby further amended by striking out section 14, as so appearing, and inserting in place thereof the following section:-

Section 14. (1) If any member of the board, the reviewing board, or any court before which proceedings under this chapter are brought determines that such proceedings have been brought, prosecuted, or defended without reasonable ground, the whole cost of the proceedings shall be assessed upon the party who has so brought, prosecuted or defended them.

(2) If it is determined that any party has brought, prosecuted, or defended proceedings with the intent to defraud, the party shall be assessed, in addition to the whole costs of such proceedings and attorney's fees, a penalty, payable to the aggrieved insurer or employee, in an amount not less than the average weekly wage in the commonwealth multiplied by three. Any employee who has received payments for compensation pursuant to a claim found to be fraudulent under this subsection shall reimburse the amount of such payments with interest to the insurer. Any action provided in this subsection shall be brought by an employee, employer or insurer in the superior court department of the trial court for the county in which the injury occurred or in the county of Suffolk, provided, however, that if presented to the superior court for the county of Suffolk, the court may, on motion of any party in interest, order the case removed to the superior court for the county in which the injury occurred.

SECTION 30. Section 15 of said chapter 152, as so appearing, is hereby amended by striking out the eighth and ninth sentences and inserting in place thereof the following two sentences:- Except in the case of a settlement by agreement by the parties to, and during a trial of, such an action at law, no settlement by agreement shall be made with such other person without the approval of either the board, the reviewing board, or the court in which the action has been commenced after an opportunity has been afforded both the insurer and the employee to be heard on the merits of the settlement and on the amount, if any, to which the insurer is entitled out of such settlement by way of reimbursement, which amount shall be determined at the time of such approval. In the case of a settlement by agreement by the parties to and during a trial of such an action at law, only the justice presiding at the trial shall have and exercise, relative to the approval of such settlement by agreement and to the protection of the rights and interests of the employee, the powers granted in the preceding sentence.

SECTION 31. Said chapter 152 is hereby further amended by striking out section 16, as so appearing, and inserting in place thereof the following section:-

Section 16. When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law, and such employee or his dependents, in the event of his death, may have further hearings as to whether his incapacity or death is or was the result of the injury for which he received compensation; provided, however, that if the board shall determine that the petition for such rehearing is without merit or frivolous, the employee or his dependents shall not thereafter be entitled to file any subsequent petition thereof except for cause shown and in the discretion of the member to whom such subsequent petition may be referred; and, provided further, that, in the event of the death of the employee, such a petition for a rehearing shall be filed within three months from the time of his decease and within one year from the date of the finding terminating his compensation.

SECTION 32. Said chapter 152 is hereby further amended by striking out section 17, as so appearing, and inserting in place thereof the following section:-

Section 17. All orders or decisions issued in accordance with this chapter shall be enforceable under section twelve unless and until reversed by a decision of a member of the board or a reviewing board, or a judgement or decision of a court of the commonwealth; and payment of compensation, when ordered, shall commence immediately, with the first payment to be received by the employee within fourteen days of the issuance of any such order or decision, and shall cover all periods for which compensation is due under this chapter. No penalties shall be assessed during the pendancy of any appeal.

SECTION 33. Said chapter 152 is hereby further amended by striking out section 19, as so appearing, and inserting in place thereof the following section:-

Section 19. Subject to the approval of the department, questions arising under this chapter may be settled by agreement by the parties interested therein, except as otherwise provided in this chapter. The agreements shall for all purposes be enforceable in the same manner as an order under section twelve. A party to such agreement may file a complaint to vacate or modify the agreement on grounds of law or equity.

SECTION 34. Said chapter 152 is hereby further amended by striking out section 23, as so appearing, and inserting in place thereof the following section:-

Section 23. If an employee files any claim or accepts payment of compensation on account of personal injury under this chapter, or submits to a proceeding before the department under sections ten to twelve, inclusive, such action shall constitute a release to the insurer of all claims or demands at common law, if any, arising from the injury. If an employee accepts payment of compensation under this chapter on account of personal injury or makes an agreement under section forty-eight, such action shall constitute a release to the insured of all claims or demands at common law, if any, arising from the injury.

SECTION 35. Said chapter 152 is hereby further amended by striking out section 24, as so appearing, and inserting in place thereof the following section:-

Section 24. An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury that is compensable under this chapter, to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, or, if the contract of hire was made before the employer became an insured person self-insurer, if the employee shall not have given the said notice within thirty days of the time said employer became an insured person or self-insurer. An employee who has given notice to his employer that he claimed his right of action as aforesaid may waive such claim by a written notice, which shall take effect five days after it is delivered to the employer or his agent. The notices required by this section shall be given in such manner as the department may approve. If an employee has not given notice to his employer that he preserves his right of action at common law as provided by this section, the employee's spouse, children, parents and any other member of the employee's family or next of kin who is wholly or partly dependent upon the earnings of such employee at the time of injury or death, shall also be held to have waived any right of action at common law against such employer for damage due to loss of consortium, parental guidance, companionship or the like, when such loss is a result of any injury to the employee that is compensable under this chapter.

SECTION 36. Said chapter 152 is hereby further amended by inserting after section 25D the following seventeen sections:-

Section 25E. Sections twenty-five E to twenty-five U, inclusive, shall apply to workers' compensation self-insurance groups. A workers' compensation self-insurance group that is issued a certificate of approval by the commissioner shall not be deemed to be insurers or insurance companies and shall not be subject to the provisions of the insurance laws and regulations of the commonwealth except as otherwise provided herein. Workers' compensation self-insurance groups shall be subject to all provisions of this chapter and all regulations promulgated hereunder governing the conduct of insurers with respect to the payment of workers' compensation benefits, and shall be subject to all fees, fines, penalties and assessments levied upon insurers for failure to comply with the claim procedure of this chapter.

As used in this section and sections twenty-five F to twenty-five U, inclusive, the following words, unless the context requires otherwise, shall have the following meanings:-

"Administrator", an individual, partnership, corporation or unincorporated association engaged by a workers' compensation self-insurance group's board of trustees to carry out the policies established by the group's board of trustees and to provide daily management of the group.

"Insolvent" or "Insolvency", the inability of a workers' compensation self-insurance group to pay its outstanding lawful obligations as they mature in the regular course of business, as may be shown either by an excess of its required reserves and other liabilities over its assets or by its not having sufficient assets to reinsure all of its outstanding liabilities after paying all accrued claims owed by it.

"Net premium", premium derived from standard premium adjusted by any advance premium discounts.

"Standard premium", the premium derived from the manual rates adjusted by experience modification factors but before advance premium discounts.

"Workers' compensation", when used as a modifier of benefits, liabilities or obligations, shall mean both workers' compensation and employer's liability.

"Public employer workers' compensation self-insurance group", or "public employer group", a not-for-profit association consisting of five or more employers, all of whom are public entities, who enter into agreements to pool their liabilities for workers' compensation benefits and employer's liability in this state.

"Workers' compensation self-insurance group" or "group", a public employers group or a not-for-profit unincorporated association consisting of five or more employers who are engaged in the same or similar type of business, who are members of the same bona fide industry, trade or professional association which has been in existence for not less than two years, and who enter into agreements to pool their liabilities for workers' compensation benefits and employer's liability in this state.

"Commissioner of insurance", the commissioner of the department of insurance.

Section 25F. No person, association, or entity shall act as a workers' compensation self-insurance group unless it has been issued a certificate of approval by the commissioner of insurance.

Section 25G. (1) A proposed workers' compensation self-insurance group shall file with the commissioner of insurance its application for a certificate of approval accompanied by a nonrefundable filing fee in the amount of one hundred dollars. The application shall include the group's name, the location of its principal office, the date of organization, the name and address of each member, and such other information as said commissioner may reasonably require, together with the following:

(a) a copy of the by-laws of the proposed group, and a copy of the articles of association, if any;

(b) an individual application of each member of the group applying for coverage by the group on the inception date of the group;

(c) a current certified financial statement of each member, including at a minimum, a balance sheet, a profit and loss statement, a statement of change in fund position, and a statement showing the combined net worth of all members applying for coverage on the inception date of the fund. The combined net worth shall be of an amount that establishes the financial strength and liquidity of the businesses;

(d) a pro forma financial statement on a form acceptable to the commissioner showing the financial ability of the group to pay the workers' compensation obligations of its members;

(e) a composite listing of the estimated standard premium and annual net premium to be developed for each member individually and in total as a group. Payroll data for each of the three preceding years shall be furnished by risk classification;

(f) a documented agreement by each member to pay to the group not less than twenty-five per cent of that member's estimated annual net premium not later than the initial day of coverage afforded by the group;

(g) a confirmation of any required reinsurance by a recognized carrier in an amount estimated acceptable to the commissioner of insurance;

(h) the designation of the initial board of trustees and administrator;

(i) an indemnity agreement jointly and severally binding the group and each member thereof to comply with the provisions of the chapter, which shall conform to an indemnity agreement prescribed by the commissioner of insurance;

(j) a breakdown of all projected administrative expenses for the group year in dollar amount and as a percentage of the estimated annual normal premium;

(k) proof provided by the trustees, satisfactory to the commissioner of insurance, that the annual gross premiums of the group shall be not less than one hundred thousand dollars, except that the annual gross premium for public employers groups will not be less than one million dollars;

(2) To obtain and to maintain its certificate of approval, a workers' compensation self-insurance group shall comply with the following requirements as well as any other requirements established by law or regulation:

(a) A combined net worth of all members of a group of private employers of at least one million dollars;

(b) Security in a form and amount prescribed by the commissioner which shall be provided by either a surety bond, or security deposit, or any combination thereof. If a surety bond is used to meet the security requirement, it shall be issued by a corporate surety company authorized to transact business in the commonwealth. If a security deposit is used to meet the security requirement, securities shall be limited to bonds or other evidences of indebtedness issued, assumed, or guaranteed by the United States of America, or by an agency or instrumentality thereof; certificates of deposit in a federally insured savings and loan association or credit union; or any bond or security issued by a state of the United States of America and backed by its full faith and credit.

The bond, or security deposit, shall be for the benefit of the commonwealth solely to pay claims and associated expenses and payable on the failure of the group to pay workers' compensation benefits which it is legally obligated to pay. The commissioner may establish requirements for the amount of security based on differences among groups in their size, types of employment, years in existence, and other relevant factors; provided, however, that the commissioner of insurance may not require an amount lower than one hundred thousand dollars for any group during its first year of operation;

(c) Specific and aggregate excess insurance in a form, in an amount, and by an insurer acceptable to the commissioner of insurance. The commissioner of insurance may establish minimum requirements for the amount of specific and aggregate excess insurance based on differences among groups in their size, types of employments, types of local government services provided by members of public employers groups, years in existence, and other relevant factors and may permit a group to meet this requirement by placing in a designated depository securities of the type referred to in paragraph (b) of this subsection.

(d) A fidelity bond for the administrator, if any, in a form and amount prescribed by the commissioner of insurance;

(e) A group shall notify the commissioner of insurance of any change in the information required to be filed under subsection (1) or in the manner of its compliance with subsection (2) no later than thirty days after such change.

(3) The commissioner of insurance shall evaluate the information provided by the application required to be filed under subsection (1) of this section to assure that no gaps in funding exist and that funds necessary to pay workers' compensation benefits shall be available on a timely basis.

(4) The commissioner of insurance shall act on a completed application for a certificate of approval within ninety days.

(5) The commissioner of insurance shall issue to the group a certificate of approval on finding that the proposed group has met all requirements, or shall issue an order refusing such certificate setting forth reasons for such refusal on finding that the proposed group does not meet all requirements.

(6) Each workers' compensation self-insurance group shall be deemed to have appointed the commissioner of insurance as its attorney to receive service of legal process issued against it in the commonwealth. The appointment shall be irrevocable, shall bind any successor in interest and shall remain in effect as long as there is in the commonwealth any obligation or liability of the group for workers' compensation benefits.

(7) The provisions of paragraphs (c) and (i) of subsection (1) and paragraphs (a) and (b) of subsection (2) shall not apply to public employer groups.

Section 25H. (1) The certificate of approval issued by the commissioner of insurance to a workers' compensation self-insurance group authorizes the group to provide workers' compensation benefits. The certificate of approval remains in effect until terminated at the request of the group or revoked by the commissioner of insurance pursuant to the provisions of section twenty-five U.

(2) The commissioner of insurance shall not grant the request of any group to terminate its certificate of approval unless the group has insured or reinsured all incurred workers' compensation obligations with an authorized insurer under an agreement filed with and approved in writing by said commissioner. Such obligations shall include both known claims and expenses associated therewith. Subject to the approval of the commissioner of insurance, a group may merge with another group engaged in the same or similar type of business only if the resulting group assumes in full all obligations of the merging groups. A public employer group may only merge with another public employer group. The commissioner of insurance may hold a hearing on the merger and shall do so if any party, including a member of either group, so requests.

Section 25I. The commissioner of insurance shall examine the affairs, transactions, accounts, records and assets of each group as often as the commissioner deems advisable, but not less often than once every three years. The expense of such examinations shall be assessed against the group in the same amount and manner that insurers are assessed for examinations.

Section 25J. (1) Each group shall be operated by a board of trustees which shall consist of not less than three persons whom the members of a group elect for stated terms of office. At least two of the trustees shall be employees, officers or directors of members of the group, except for public employer groups for whom the three trustees shall be elected officials or employees of public entities within this state. The administrator of a self-insurance group, if any, shall not serve on the board of trustees of the group, unless the group is a public employer group, in which case the administrator may serve as a trustee. All trustees shall be residents of the commonwealth or officer of corporations authorized to do business in the commonwealth.

(2) The board of trustees of each group shall ensure that all claims are paid promptly and shall take all necessary precautions to safeguard the assets of the group, including the following:

(a) Maintain responsibility for all monies collected or disbursed from the group and segregate all monies in a claims fund account and an administrative fund account. Net premium shall be placed in a designated depository in an amount equal to the aggregate retained workers' compensation liability of the group, and such deposits shall be called the claims fund account. The remaining net premium after any payments for reinsurance or excess insurance shall be placed in a designated depository for the payment of taxes, general regulatory fees and assessments and administrative costs and such deposits shall be called the administrative fund account.

(b) Maintain minutes of its meetings and make such minutes available to the commissioner of insurance; and

(c) Designate an administrator to carry out the policies established by the board of trustees and to provide day to day management of the group and delineate in the written minutes of its meetings the areas of authority it delegates to the administrator.

(3) Funds not needed for current obligations may be invested by the board of trustees in accordance with the provisions of section sixty-three of chapter one hundred and seventy-five.

(4) The board of trustees shall not:

(a) Extend credit to individual members for payment of a premium, except pursuant to payment plans approved by the commissioner of insurance.

(b) Borrow any monies from the group or in the name of the group except in the ordinary course of business, without first advising the commissioner of insurance of the nature and purpose of the loan and obtaining prior approval from the commissioner of insurance.

Section 25K. (1) An employer joining a workers' compensation self-insurance group after the group has been issued a certificate of approval shall submit an application for membership to the board of trustees or its administrator and, unless the employer is a public employer, enter into the indemnity agreement required by paragraph (i) of subsection (1) of section twenty-five G. Membership shall take effect no earlier than each member's date of approval. The application for membership and its approval shall be maintained as permanent records of the board of trustees.

(2) Individual members of the group shall be subject to cancellation by the group pursuant to the by-laws of the group. In addition, individual members may elect to terminate their participation in the group. The group shall notify the commissioner of insurance and the department of industrial accidents of the termination or cancellation of a member within ten days and shall maintain coverage of each cancelled or terminated member for thirty days after such notice, with the cancelled or terminated member responsible for the premium for such period, unless the group is notified sooner by the workers' compensation agency that the cancelled or terminated member has procured workers' compensation insurance, has become a self-insurer, or has become a member of another group.

(3) The group shall pay all workers' compensation benefits for which each member incurs liability during its period of membership. A member of a group, unless the group is a public employer group, who elects to terminate its membership or is cancelled by the group shall remain jointly and severally liable for the workers' compensation obligations of the group and its members which were incurred during the cancelled or terminate member's period of membership.

(4) A group member is not relieved of its workers' compensation liabilities incurred during its period of membership except through payment by the group or the member of required workers' compensation benefits.

(5) The insolvency or bankruptcy of a member shall not relieve the group or, unless the group is a public employer group, any other member of the group of liability for the payment of workers' compensation benefits incurred during the insolvent or bankrupt member's period of membership.

Section 25L. Except for the trustees, officers, directors or salaried employees of a group or its administrator, any person soliciting membership in a workers' compensation self-insurance group must be a licensed agent as provided by section sixty-three of chapter one hundred and seventy-five.

Section 25M. No person shall make a material misrepresentation or omission of a material fact in connection with the solicitation of a membership of a group.

Section 25N. Each group shall submit to the commissioner of insurance thirty days prior to the end of its policy year a performance report estimating total outstanding liability, including incurred but not reported claims, for that policy year.

Each group shall submit to the commissioner of insurance a statement of financial condition audited by an independent certified public accountant on or before the last day of the sixth month following the end of the group's fiscal year. Said financial statement shall be on a form prescribed by said commissioner and shall include, but not be limited to, actuarially appropriate reserves for known claims and expenses associated therewith, claims incurred but not reported and expenses associated therewith, reinsurance in force, unearned premiums, and bad debts, which reserves shall be known as liabilities.

The commissioner of insurance may prescribe the format and frequency of other reports which may include, but shall not be limited to, payroll audit reports, summary loss reports and quarterly financial statements.

Section 25 O. (1) Every workers' compensation self-insurance group shall adhere to the uniform classification system, uniform experience rating plan, and manual rules filed with the commissioner of insurance by an advisory organization designated by said commissioner.

(2) Premium contributions to the group shall be determined by applying the manual rates and rules to the appropriate classification of each member which shall be adjusted by each member's experience credit or debit. Subject to approval by the commissioner of insurance, premium contributions may also be reduced by an advance premium discount reflecting the group's expense levels and loss experience.

(3) Notwithstanding the provisions of subsection (2), a group may apply to the commissioner of insurance for authority to make its own rates. Such rates shall be based on at least two years of the group's experience. Public employer safety groups in operation for at least two consecutive years prior to their application as a public employer self insurance group may apply to the commissioner of insurance to make its own rates effective the first year of operation as a self insured group.

(4) Each group shall be audited at least annually by an auditor approved by the commissioner of insurance to verify proper classifications, experience rating, payroll and rates. A report of the audit shall be filed with said commissioner of insurance in a form acceptable to him. A group or any member thereof may request a hearing on any objections to the classifications. If the commissioner of insurance determines that, as a result of an improper classification, a member's premium contribution is insufficient, he shall order the group to assess that member an amount equal to the deficiency. If said commissioner determines that as a result of an improper classification a member's premium is excessive, he shall order the group to refund to the member the excess collected. The audit shall be at the expense of the group.

Section 25P. Any monies for a fund year in excess of the amount necessary to fund all obligations for such fund year may be declared to be refundable by the board of trustees not less than six months after the end of the fund year.

Each member shall be given a written description of the refund plan at the time of application for membership. A refund for any fund year shall be paid only to those employers who remain participants in the group for the entire fund year. Payment of a refund based on a previous fund year shall not be contingent on continued membership in the group after that fund year.

Section 25Q. (1) Each group shall establish with the approval of the commissioner of insurance a premium payment plan which shall include an initial payment by each member of at least twenty-five per cent of that member's annual premium before the start of the group's fund year and payment of the balance of each member's annual premium within the first eight months of that fund year in monthly or quarterly installments.

(2) Each group shall establish and maintain actuarially appropriate loss reserves which shall include reserves for known claims and expenses associated therewith and claims incurred but not reported and expenses associated therewith.

(3) Each group shall establish and maintain bad debt reserves based on the historical experience of the group or other groups.

(4) Subsections (1) and (3) shall not apply to public employer groups; provided, however, that public employer groups shall establish a premium payment plan acceptable to the commissioner.

Section 25R. If the assets of a group are at any time insufficient to enable the group to discharge its legal liabilities and other obligations and to maintain the reserves required of it under this chapter, it shall forthwith make up the deficiency or levy an assessment on its members for the amount needed to make up the deficiency.

In the event of a deficiency in any fund year, such deficiency shall be made up immediately, either from surplus from a fund year other than the current fund year, administrative funds, assessment of the membership, if ordered by the group or, such alternate method as the commissioner of insurance may approve of direct. Said commissioner shall be notified prior to any transfer of surplus funds from one fund year to another.

If the group fails to assess its members or to otherwise make up such deficit within thirty days the commissioner of insurance shall order it to do so.

If the group fails to make the required assessment of its members within thirty days after the commissioner of insurance orders it to do so, or if the deficiency is not fully made up within sixty days after the date on which such assessment is made, then after such longer period of time as may be specified by said commissioner, the group shall be deemed to be insolvent.

The commissioner of insurance shall proceed against an insolvent group in the same manner as said commissioner would proceed against in insolvent domestic insurer in the commonwealth pursuant to section six of chapter one hundred and seventy-five. Said commissioner shall have the same powers and limitations in such proceedings as are provided under said section six, except as otherwise provided in this chapter.

In the event of the liquidation of a group, the commissioner of insurance shall levy an assessment on its members for such an amount as he determines to be necessary to discharge all liabilities of the group, including the reasonable cost of liquidation.

Section 25S. After notice and opportunity for a hearing, the commissioner of insurance may impose a monetary penalty on any person or group found to be in violation of any of the provisions of section twenty-five E to twenty-five V, inclusive, or of any rules or regulations promulgated thereunder. The monetary penalty shall not exceed one thousand dollars for each act or violation, not to exceed an aggregate monetary penalty of ten thousand dollars. The amount of any such monetary penalty shall be paid to said commissioner for the use of the department of insurance.

Section 25T. After notice and opportunity for a hearing, the commissioner of insurance may issue an order requiring a person or group to cease and desist from engaging in an act or practice found to be in violation of any provision of sections twenty-five E to twenty-five U, inclusive, or of any rules or regulations promulgated thereunder.

Upon a finding, after notice and opportunity for a hearing, that any person or group has violated any cease and desist order, the commissioner of insurance may: impose a monetary penalty of not more than ten thousand dollars for each act or violation of such order not to exceed an aggregate monetary penalty of one hundred thousand dollars and may revoke the group's certificate of approval.

Section 25U. After notice and opportunity for a hearing, the commissioner of insurance may revoke a group's certificate of approval if it is found to be insolvent, regulatory or assessment, or special fund or trust fund contribution imposed on it, or fails to comply with any of the applicable provisions of sections twenty-five E to twenty-five U, inclusive, with any rules lawfully promulgated, or with any lawful order of said commissioner within the time prescribed. In addition, said commissioner of insurance may revoke a group's certificate of approval if, after notice and opportunity for hearing, the commissioner finds that any certificate of approval that was issued to the group was obtained by fraud; that there was a material misrepresentation in the application for the certificate of approval; or that the group or its administrator has misappropriated, converted, illegally withheld, or refused to pay over on proper demand any monies that belong to a member, an employee of a member, or a person otherwise entitled thereto and that have been entrusted to the group or its administrator in its fiduciary capacities.

This section shall apply to public employer groups; provided, however, that the failure of a public employer group to pay a premium tax shall not be grounds for revocation of the public employer group's certificate of approval.

SECTION 37. Section 28 of said chapter 152, as appearing in the 1984 Official Edition, is hereby amended by adding the following paragraph:-

As used in this section the term "minor" shall not include mentally retarded persons eighteen years of age or older if:

(1) the employment takes place in a sheltered workshop which holds either a license from the department of mental health or accreditation from the commission on accreditation of rehabilitation facilities; and

(2) a professional vocational specialist evaluates the employee at the employment site, for the specific job performed and such evaluation determines in writing that the employee is appropriate for and capable of such employment; and

(3) the employee has agreed in writing to the written rehabilitation plan or to an accurate verbal description of such written plan.

The division of administration shall keep statistical records on injuries that occur at sheltered workshops. If there appears to be a pattern of such injuries at a particular sheltered workshop, the office of claims administration shall notify the division of accreditation in the department of mental health and such division shall take whatever action it deems appropriate.

SECTION 38. Said chapter 152 is hereby further amended by striking out section 29, as so appearing, and inserting in place thereof the following section:-

Section 29. No compensation pursuant to section thirty-four or thirty-five shall be paid for any injury which does not incapacitate the employee from earning full wages for a period of five or more days. If incapacity extends for a period of five days or more, compensation shall be paid from the date of injury; provided, however, that, except as otherwise provided in this chapter no compensation shall be paid for any period for which any wages were earned. No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

SECTION 39. Said chapter 152 is hereby further amended by striking out section 30A, as so appearing, and inserting in place thereof the following section:-

Section 30A. Any medical report pertaining to a compensable injury shall be furnished by the physician or other medical provider to the employee, the insurer, and the department within fourteen days of completion of the examination of the employee. Each failure to comply with such reporting requirement shall be punishable by a civil fine to be determined by the director of administration, not to exceed one thousand dollars.

SECTION 40. Said chapter 152 is hereby further amended by inserting after section 30D, as so appearing, the following five sections:-

Section 30E. It shall be the policy of the department to encourage and assist in the development of voluntary agreements between injured employees and insurers to provide and utilize vocational rehabilitation services when necessary to return such employees to suitable gainful employment. The department shall promulgate rules and regulations to implement such policy.

Section 30F. The commissioner shall promulgate rules and regulations for the identification and reporting to the office of education and rehabilitation of cases in which vocational rehabilitation services may be required.

The purpose of said rules and regulations shall be to facilitate the earliest possible identification of such cases.

Section 30G. The office of education and vocational rehabilitation shall contact and meet with each injured employee who it believes may require vocational rehabilitation services in order to return to suitable employment. Any such employee who refuses to meet with the office of education and vocational rehabilitation shall not be entitled to weekly compensation benefits during the period of such refusal.

The commissioner shall provide by rule a procedure for promptly following up on such meeting by assisting an employee who needs rehabilitation services to obtain such services from the insurer, and shall monitor the progress of rehabilitation agreements and programs.

Section 30H. If the insurer and employee fail to agree to a vocational rehabilitation program, the employee may apply to the office of education and vocational rehabilitation for vocational rehabilitation services. The office shall determine if vocational rehabilitation is necessary and feasible to return the employee to suitable employment. Such determination by the office shall be final and not subject to review by the board or reviewing board, but may be appealed to the commissioner. If the office determines that vocational rehabilitation is necessary and feasible, it shall promptly develop, after such consultation as it judges reasonable with the employee and the insurer, an appropriate program of no greater than fifty-two weeks for the employee. It shall inform the insurer and the employee of its determination and of the program developed. The insurer shall have ten days in which to review such determination and program. If the insurer refuses to provide the vocational rehabilitation program developed by the office, the office shall provide it to the employee with trust fund money pursuant to section sixty-five. The commissioner shall provide by rule for efficient procedures and quality controls in the office's management of such programs, which may be carried out under contract by private rehabilitation service providers. If, upon the completion of the program, the office determines that the program was successful and returned the employee to suitable employment, it shall assess the insurer no less than twice the cost incurred by the office and such assessment shall be paid into said trust fund. The insurer may contest any aspect of the assessment by filing a complaint with the division of dispute resolution. The injured employee shall not be a party to such proceedings.

Section 30I. The department shall assist and cooperate with the division of employment security, the United States Department of Labor, and any other appropriate state or federal agency, in attempting to make available to disabled employees eligible to receive compensation benefits, new jobs and job training programs, including, but not limited to, those conducted under the job training partnership act of nineteen hundred and eighty-two and successor programs. The division of employment security shall assist in such efforts.

SECTION 41. Section 31 of said chapter 152, as so appearing, is hereby amended by striking out the seventh, eighth and ninth paragraphs.

SECTION 42. Said chapter 152 is hereby further amended by striking out section 34, as so appearing, and inserting in place thereof the following section:-

Section 34. While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.

The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty.

SECTION 43. Said chapter 152 is hereby further amended by striking out section 34A, as so appearing, and inserting in place thereof the following section:-

Section 34A. While the incapacity for work resulting from the injury is both permanent and total during each week of incapacity, the insurer shall pay the injured employee compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate.

SECTION 43A. Said chapter 152 is hereby further amended by inserting after section 34A the following section:-

Section 34B. October first of each year shall be the review date for the purposes of this section.

Any person receiving or entitled to receive the benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall be paid, without application, a supplement to weekly compensation to the extent such supplement shall not reduce any benefits such person is receiving pursuant to federal social security law. The supplemental benefits shall be paid in accordance with the following provisions:-

(a) The director of administration shall determine the percentage increase between (i) the average weekly wage in the commonwealth on the date the permanently and totally disabled employee was injured or on the date the deceased worker was injured, and (ii) the average weekly wage in the commonwealth on the review date. For purposes of this section, the increase in the average weekly wage in the commonwealth shall not exceed ten per cent in any year.

(b) The death benefit under section thirty-one or the permanent and total disability benefit under section thirty-four A that was being paid prior to any adjustments under this section shall be the base benefit. The base benefit shall be increased on each review date by the percentage increase in the average weekly wage in the commonwealth as calculated in the paragraph (a); the resulting amount shall be termed the adjusted benefit and is the amount of benefit to be paid on and after the review date. The difference between the base benefit and the adjusted benefit shall be termed the supplemental benefit.

(3) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit. Insurers shall be entitled to quarterly reimbursements for supplemental benefits, pursuant to section sixty-five, for cases involving injuries that occurred on or before October first, nineteen hundred and eighty-six, and for those cases occurring thereafter, to the extent such supplemental benefits are due to the increase of greater than five per cent in the average weekly wage in the commonwealth in any single year.

SECTION 44. Said chapter 152 is hereby further amended by striking out section 35, as so appearing, and inserting in place thereof the following section:-

Section 35. While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average weekly wage before the injury and the weekly wage he is capable of earning after the injury, but not more than the maximum weekly compensation rate.

The total number of weeks of compensation due the employee under this section shall not exceed six hundred.

SECTION 45. Said chapter 152 is hereby further amended by inserting after section 35B the following four sections:-

Section 35C. When there is a difference of five years or more between the date of injury and the initial date on which the injured worker or his survivor first became eligible for benefits under section thirty-one, thirty-four, thirty-four A, or section thirty-five, the applicable benefits shall be those in effect on the first date of eligibility for benefits.

For purposes of adjustments to compensation under sections thirty-four B and thirty-five F for employees subject to this section, the first date of eligibility for benefits rather than the date of injury shall be used for purposes of computing such supplemental benefits.

Section 35D. For purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following:-

(1) The actual earnings of the employee during each week.

(2) The earnings that the employee is capable of earning in the job the employee held at the time of injury, provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written offer of his former job from the employer, together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.

(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.

(4) The earnings that the employee is capable of earning.

(5) Implementation of this section is subject to the procedures contained in section eight. For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee's injury, so long as such job bears a reasonable relationship to the employee's work experience, education, or training, either before or after the employee's injury.

Section 35E. Any person receiving old age benefits pursuant to federal social security law or receiving pension benefits paid in part or entirely by an employer shall not be entitled to benefits under section thirty-five, unless such employee can establish that but for the injury, such employee would have remained active in the labor market. Claims for compensation, or complaint for modification, or discontinuance of benefits based on this section shall not be filed more often than once every twelve months.

Section 35F. (1) October first of each year shall be the review date for the purposes of this section.

(2) Any person receiving or entitled to receive benefits under section thirty-five whose benefits are based on a date of personal injury at least thirty-six months prior to the review date shall be paid, without application, a supplement to weekly compensation to the extent such supplement shall not reduce any benefits such person is receiving pursuant to federal social security law. The supplemental benefits shall be paid in accordance with the following provisions:

(a) The director of administration shall determine the percentage increase between (i) the average weekly wage in the commonwealth on the date the partially disabled employee was injured and (ii) the average weekly wage in the commonwealth on the review date. For purpose of this section, the increase in the average weekly wage in the commonwealth shall not exceed five per cent in any year.

(b) During the twelve months after the review date, any weekly benefit the employee is entitled to receive under section thirty-five shall be the base benefit. During the twelve months after the review date, the base benefit for any week shall be increased by the percentage increase in the average weekly wage in the commonwealth as calculated in the preceding paragraph; the resulting amount shall be termed the adjusted benefit and is the amount of benefit to be paid for the week. The difference between the base benefit and the adjusted benefit shall be termed the supplemental benefit.

(3) The supplemental benefits under this section shall be paid by the insurer concurrent with the base benefit.

SECTION 46. Said chapter 152 is hereby further amended by striking out section 36, as so appearing, and inserting in place thereof the following section:-

Section 36. (1) In addition to all other compensation the employee shall be paid the sums hereafter designated for the following specific permanent injuries:

(a) For the loss by enucleation or otherwise or the total loss of use of one eye, or for injury to one eye which produces an inability which is not correctible to use both eyes together for single binocular vision, or the reduction to twenty-seventieths of normal vision in one eye, with glasses, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by thirty-nine.

(b) For the loss by enucleation or otherwise, or the total loss of use of both eyes, or the reduction to twenty-seventieths of normal vision in both eyes, with glasses, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by ninety-six.

(c) For any correctible permanent but partial reduction in either the acuity or field of vision of one or both eyes, such sum in proportion to the amount applicable in the event of total loss, total loss of use, or the reduction to twenty-seventieths of normal vision of one or both eyes as the correctible partial reduction bears to such total loss, total loss of use or reduction to twenty-seventieths of normal vision; provided that, for any permanent but partial reduction in either acuity or field or vision of either eye which requires the use of corrective device, such as glasses or contact lens, to produce normal vision, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by seven.

(d) For the loss of hearing of one ear, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by twenty-nine; for the loss of hearing of both ears, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by seventy-seven.

(e) For the amputation or permanent, total loss of use of the major arm, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by forty-three; for the amputation or permanent total loss of use of the minor arm, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by thirty-nine; for the amputation or permanent total loss of use of both arms, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by ninety-six.

(f) For the amputation or permanent, total loss of use of the major hand at the wrist, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by thirty-four; for the amputation or permanent, total loss of use of the minor hand at the wrist, a sum equal to the average weekly wage in the commonwealth at the date of injury multiplied by twenty-nine; for the amputation or permanent, total loss of use of both hands at the wrist, a sum equal to the average weekly wage in the commonwealth at the date of injury multiplied by seventy-seven.

(g) For the amputation or permanent, total loss of use of either leg, a sum equal to the average weekly wage in the commonwealth at the date of the injury multiplied by thirty-nine; for the amputation or permanent, total loss of use of both legs, a sum equal to the average weekly wage in the commonwealth on the date of injury multiplied by ninety-six.

(h) For the amputation or permanent, total loss of use of either foot at any point above the ankle joint, a sum equal to the average weekly wage in the commonwealth at the date of injury multiplied by twenty-nine; for the amputation or permanent, total loss of use of both feet at any point above the ankle joints, a sum equal to the average weekly wage in the commonwealth at the date of injury multiplied by sixty-eight.

(i) For any permanent but partial loss of use of a member, whether leg, foot, arm, or hand, such sum in proportion to the amount applicable in the event of amputation or permanent, total loss of use of said member as the said partial loss bears to the total loss of use of said member.

(j) For each loss of bodily function or sense, other than those specified in preceding paragraphs of this section, the amount which, according to the determination of the member or reviewing board, is a proper and equitable compensation, not to exceed the average weekly wage in the commonwealth at the date of injury multiplied by thirty-two; provided, however, that the total amount payable under this paragraph shall not exceed the average weekly wage in the commonwealth at the date of injury multiplied by eighty.

(k) For bodily disfigurement, an amount which, according to the determination of the member or reviewing board, is a proper and equitable compensation, not to exceed the average weekly wage in the commonwealth at the date of injury multiplied by thirty-two; which sum shall be payable in addition to all other sums due under this section.

(2) Where applicable, losses under this section shall be determined in accordance with standards set forth in the American Medical Association Guides to the Evaluation of Permanent Impairments. Nothing in this section shall adversely affect the employee's rights to any compensation which is or may become due under the provisions of any other section.

SECTION 47. The second paragraph of section 36A of said chapter 152, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- Where any specified loss, losses or disfigurement under section thirty-six is a result of an injury involving brain damage, payment in total under that section for the sum of such loss, losses or disfigurement resulting from said brain damage shall not exceed an amount equal to the average weekly wage in the commonwealth at the date of injury multiplied by one hundred and five.

SECTION 47A. Said chapter 152 is hereby further amended by inserting after section 36A the following section:-

Section 36B. (1) No benefits shall be payable under section thirty-four or section thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits.

(2) Any employee claiming or receiving benefits under section thirty-five who may be entitled to unemployment compensation benefits shall upon written request from the insurer apply for such benefits. Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under said section thirty-five. Any unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period, or, if for a period of time for which partial disability benefits have already been paid, shall be credited against any future partial disability benefits which are or may become payable.

SECTION 48. The first paragraph of section 37 of said chapter 152, as appearing in the 1984 Official Edition, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- The insurer or self insurer shall, however, be reimbursed by the state treasurer from the trust fund created by section sixty-five in an amount equal to seventy-five per cent of all compensation paid subsequent to that paid for the first one hundred and four weeks of disability.

SECTION 49. Said section 37 of said chapter 152, as so appearing, is hereby further amended by striking out the last paragraph and inserting in place thereof the following paragraph:-

The attorney general shall in all instances have the authority to defend claims against the fund. No liability for any case arising under this section shall be redeemed by a lump sum payment as provided in section forty-eight, unless the attorney general or his designee has been given an opportunity to appear and be heard on behalf of the fund, but reimbursement from the trust fund may be made without the necessity of further approval of the lump sum by the state treasurer. No reimbursement shall be made covering the first one hundred and four weekly payments or for medical benefits during that period, whether paid under an agreement, decision, or lump sum settlement.

SECTION 50. Said chapter 152 is hereby further amended by striking out section 41, as so appearing, and inserting in place thereof the following section:-

Section 41. No proceedings for compensation payable under this chapter shall be maintained unless a notice thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof, and unless any claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment. In the event of death, no claim shall be made later than four years after the death. Where an action against a third person, as provided by section fifteen, is discontinued, no claim for compensation shall be made later than sixty days after such discontinuance.

The payment of compensation for any injury pursuant to this chapter or the filing of a claim for compensation as provided in this chapter shall toll the statute of limitations for any benefits due pursuant to this chapter for such injury.

SECTION 51. Section forty-one A of said chapter one hundred and fifty-two is hereby repealed.

SECTION 52. Said chapter 152 is hereby further amended by striking out section 48, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 48. (1) Under the conditions and limitations specified in this chapter, the insurer and employee may by agreement redeem any liability for compensation, in whole or in part, by the payment by the insurer of a lump sum of an amount to be approved by the reviewing board.

(2) Where insurer liability for compensation of any kind under this chapter has been established for an injury by acceptance or by a standing decision of the board, the reviewing board, or a court of the commonwealth, prior to such lump sum agreement, the settlement shall not redeem liability for the payment of medical benefits or vocational rehabilitation benefits with respect to such injury.

No lump sum agreement made prior to the establishment of liability for compensation shall prohibit an employee from subsequently filing a claim for medical benefits only, in any instance in which such employee has suffered a substantial deterioration of his medical condition which (i) could not reasonably have been foreseen at the time said agreement was entered into, (ii) is the result of an injury for which the insurer would have been liable under this chapter, absent the lump sum settlement. Claims under this paragraph shall be considered only if brought within one year of the date the employee first became aware of the causal relationship between the substantial deterioration and the employment. Claims shall be consistent with the procedures set forth in sections ten, ten A, and eleven. No liability for such claims shall be redeemed by any additional lump sum settlement.

(3) Prior to approval of any lump sum settlement, the office of education and vocational rehabilitation shall review the following factors with the employee and his attorney:

(a) the employee's rights under this chapter and the effect a lump sum settlement would have upon such rights;

(b) in the case of a lump sum settlement that includes the redemption of future medical benefits, the likelihood that the employee may require such services and the present cost of insurance or other means of defraying such potential expenses;

(c) the total income and financial prospectus of the employee including all means of support;

(d) the purpose for which the settlement is requested;

(e) the employee's post-injury earnings and prospects, including the projected income and financial security of any proposed project of employment, self employment, business venture, or investment and the prudence of consulting with a financial or other expert to review the likelihood of success of such projects; and,

(f) any other information, including the age of the employee and of his dependents, which would bear upon whether the settlement is in the best interest of the claimant.

The office of education and vocational rehabilitation shall initiate such review within fourteen days of its receipt of a request by an employee for a settlement review. Said office shall send a report on the review to the reviewing board within five days of the completion of the review. A settlement review shall be considered to have taken place and a report on such review to have been received by the reviewing board if the office of education and vocational rehabilitation does not initiate a review within fourteen days of receipt of request or send a report to the reviewing board within five days of completion of the review; but in any case, no more than twenty-eight days shall transpire from the date of a receipt of said request to the date of the report to the reviewing board; provided, however, that no settlement shall be approved for any employee who fails to attend a scheduled review without good cause. Nothing in this subsection shall be deemed to create any additional liability on the part of the commonwealth.

(4) No lump sum shall be approved by the reviewing board unless the members of the reviewing board, after receiving a report on the settlement from the office of education and vocational rehabilitation, deem such settlement to be in the employee's best interest in light of the factors reviewed by the office of education and vocational rehabilitation pursuant to subsection (3).

(5) No lump sum agreement shall be approved which contains as part of a settlement a general or specific release that would serve as a bar to (i) employment with any employer, (ii) the receipt by the employee of any pay or benefits due him by an employer, (iii) the bringing of any future workers' compensation claim or (iv) the bringing of any claims of wrongful discharge or breach of contract. All such general or specific releases shall be null and void. Any employer, insurer, or attorney attempting to obtain such release from an employee shall be punished by a fine of ten times the average weekly wage in the commonwealth. The office of education and vocational rehabilitation shall inform each employee seeking a lump sum settlement of the unlawfulness of such general or specific releases.

(6) Whenever a lump sum agreement or payment has been approved by the reviewing board in accordance with the terms of this section, such agreement shall affect only the insurer and employee who are parties to such lump sum agreement and shall not affect any other action or proceeding arising out of a separate and distinct injury resulting in an incapacity whether the injury precedes or arises subsequent to the date of settlement.

SECTION 53. Section 49 of said chapter 152, as so appearing, is hereby amended by striking out the last two sentences.

SECTION 54. Said chapter 152 is hereby further amended by inserting after section 53 the following section:-

Section 53A. (1) Any insurance company authorized to transact business in this commonwealth under subclause (b) or (e) of clause Sixth of section forty-seven of chapter one hundred and seventy-five may, except as provided in clause (c) of section fifty-four of said chapter one hundred and seventy-five, insure the payment of the compensation provided for by this chapter, and when any such company insures such payment, it shall file with the commissioner of insurance, or, if it is a member of or subscriber to a rating organization under section fifty-two C, authorize such rating organization to file with the commissioner on its behalf, its classification of risks and premiums relating thereto and subsequent proposed classifications of premiums.

(2) Such classifications of risks and premiums shall be filed at least every two years on January first or such other date as the commissioner of the department of insurance initially designates. Within sixty days after the first filing subsequent to January first, nineteen hundred and eighty-five, the commissioner of the department of insurance shall conduct a hearing to determine whether the classifications and rates are not excessive, inadequate, or unfairly discriminatory for the risks to which they respectively apply and that they fall within a range of reasonableness.

(3) When a filing is not accompanied by the information upon which the insurer supports such filing, and the commissioner of the department of insurance does not have sufficient information to determine whether such filing meets the requirements of this section, he may require such insurer to furnish the information upon which it supports such filing. Any filing may be supported by the experience or judgment of the insurer or rating organization making the filing, the experience of other insurers or rating organizations, and any other factors which the insurer or rating organization deems relevant.

(4) Where a claim against an insured that has affected such insured's experience rating has been found noncompensable, or where an insurer recovers previously paid workers' compensation benefits from a negligent third party, the insurer shall submit a revised statistical unit report to the appropriate rating bureau within sixty days of such finding or recovery. Failure to make such submission shall be an unfair or deceptive act under chapter one hundred and seventy-six D.

(5) The commissioner of insurance shall, by the use of experience rating credits, the institution of a payroll cap on premium computation, or other method, provide for equitable distribution of premiums among employers paying higher than average wages and those paying lower than average wages.

(6) (a) The advisory council, established pursuant to section fifteen of chapter twenty-three E may request without limitation any loss data, from any insurance company or rating organization. Any insurance company or rating organization which is the recipient of such a request may, if it believes that the request is unduly burdensome or unreasonable, file a motion to be heard by the commissioner of insurance concerning whether all or part of the request requires response. The commissioner of insurance may, if he finds the request is unduly burdensome or unreasonable, deny the request in whole or in part.

(b) At any hearing conducted pursuant to this section, the advisory council may present a written statement and oral testimony relating to any issues which may arise during the course of the hearing. Said advisory council may not cross-examine witnesses produced by other parties, or appeal any decision of the commissioner.

(7) No proposed classifications or premiums shall take effect until approved by the commissioner of insurance as not excessive, inadequate, or unfairly discriminatory for the risks to which they respectively apply, and as within a range of reasonableness. If the commissioner does not approve or disapprove proposed classifications or premiums within six months after a filing made pursuant to subsection (2), such classifications and premiums shall be deemed approved and shall be immediately effective. If said commissioner disapproves proposed premiums and classifications, stating his reasons for disapproval, any insurance company or rating organization may file new proposed classifications and premiums.

(8) If, after the conclusion of a hearing on classification and premiums pursuant to subsection (2), the commissioner of insurance determines that any already effective premium is excessive, he shall order a specific decrease in that premium to be effective six months from the date of the insurance company or rating organization filing under consideration. He shall order a specific decrease irrespective or whether any insurance company or rating organization has filed for a decrease in any premium rate.

(9) Any insurance company may make written application to the commissioner of insurance for permission to use, in place of premium rates approved pursuant to subsections (7) and (8), a percentage decrease from said premium rates which shall be uniform within any classification of risk in the commonwealth. The commissioner shall issue an order permitting the decrease for such insurance company unless he finds that the resulting premium would be inadequate or unfairly discriminatory.

(10) Upon petition of an insurance company, rating organization, or other aggrieved party, any order or decision of the commissioner of insurance under this chapter shall be subject to review by the supreme judicial court.

SECTION 55. Said chapter 152 is hereby further amended by striking out section 65, as appearing in the 1984 Official Edition, and inserting in place thereof the following section:-

Section 65. (1) There is hereby established a special revenue fund in the state treasury, known as the Workers' Compensation Special Fund, the proceeds of which may be expended by the department, subject to appropriation, for the operating expenses of the department.

(2) There is hereby established a trust fund in the state treasury, known as the Workers' Compensation Trust Fund, the proceeds of which shall be used to pay for the following compensation: (a) adjustments to compensation pursuant to section thirty-four B; (b) adjustments to compensation pursuant to section thirty-five C; (c) reimbursements for second injury compensation in accordance with section thirty-seven; (d) rehabilitation compensation as specified in section thirty H; (e) approved claims against uninsured employers; (f) approved claims resulting from an injury caused by the activities of a fellow worker pursuant to section twenty-six; and (g) compensation payable to a disabled war veteran pursuant to the provisions of section thirty-seven A. Revenues for the special fund and the trust fund established herein shall be raised by an assessment on all employers subject to this chapter.

(3) Each insurer authorized to write workers' compensation in the commonwealth, each self-insurer, each self-insurance group, and the commonwealth shall report to the department annually on or before May first, the assessment base amount for employers subject to this chapter. The Massachusetts workers' compensation rating bureau shall report aggregate base amount data for employers insured by its members. The assessment base amount for all employers shall be the losses paid under this chapter for the preceding twelve month period beginning January first and ending on the last day of December.

If an insurer, self-insurer, or self-insurance group fails to report such base amounts to the department on or before May first, the department may assess a one thousand dollar fine for each month or part thereof that its report is late and may estimate a base amount, until the actual base amount is determined, by taking into consideration the actual base amount last reported for the assessment payor; provided, however, that no estimated base amount shall be greater than one hundred and twenty per cent of the actual base amount reported.

(4) The department shall determine the special fund and trust fund assessment rates pursuant to the following procedures:

(a) The total amount of funds appropriated each year to pay the operating expenses of the department pursuant to subsection (1) shall be known as the special fund budget.

(b) On or before July first of each year the department shall estimate the total amount of funds required to make payments during the following twelve months for the compensation payable pursuant to subsection (2) of this section. The total amount of this estimate, subject to the approval of the secretary of labor, shall be known as the trust fund budget. The trust fund budget shall be reviewed by the advisory council. Upon the affirmative vote of at least seven voting members, the advisory council may submit its own estimate of the trust fund budget to the secretary of labor. The department's estimate shall separately state that portion of projected disbursements pursuant to subsection (2) that is attributable to expected claims against (i) private employers and (ii) the commonwealth and its political subdivisions subject to this chapter. The separately stated estimate for private employers shall be known as the private employer trust fund budget. The separately stated estimate for the commonwealth and its political subdivisions shall be known as the public employer trust fund budget.

(c) If the balance of the special fund at the end of the fiscal year exceeds thirty-five per cent of the previous year's disbursements from that fund, the budget for that fund, for the purpose of calculating the fund assessment rate, shall be reduced by that part of the balance in excess of thirty-five per cent of the previous year's disbursements. If the balance of either the private employer portion or the public employer portion of the trust fund at the end of the fiscal year, exceeds thirty-five per cent of the previous year's disbursements from that portion of the fund, as reported pursuant to subsection (9), the budget for that portion of the fund, for the purpose of calculating the fund assessment rate shall be reduced by that part of the balance for that portion of the fund in excess of thirty-five per cent of the previous year's disbursements, reported pursuant to subsection (9). Additional assessments may be levied by the commissioner, subject to the approval of the secretary of labor, if he finds such assessments necessary in order to make disbursements for any expenses or compensation payments in the fiscal year which exceed the revenue generated by the assessments for the fiscal year levied pursuant to subsection (5). Any additional assessment proposed by the commissioner shall be reviewed by the advisory council. Upon the affirmative vote of at least seven voting members, the advisory council may submit its estimate of the necessary additional assessment to the secretary of labor.

(d) For each assessment payor, except for the commonwealth and any of its political subdivisions subject to this chapter, the assessment rate shall be determined by dividing the sum of the special fund and the private employer trust fund budgets, by the sum of the base amounts reported by such assessment payors pursuant to subsection (3). For the commonwealth and any of its political subdivisions subject to this chapter, the assessment rate shall be determined by dividing the amount of the public employer trust fund budget by the sum of the base amounts reported by such assessment payors pursuant to said subsection (3).

(5) Each self-insurance group shall pay to the treasurer of the commonwealth a sum assessed by the department equal to the product of the assessment rates determined pursuant to subsection (4) and the base amount determined pursuant to subsection (3). For each insured employer the assessment shall be equal to the product of its standard workers' compensation premium and the assessment rate determined pursuant to subsection (4), multiplied by the expected loss ratio used in determining manual rates in effect on July first as approved by the commissioner of insurance. Insurers shall bill and collect assessments on insured employers. Such assessments shall be separately stated amounts on all premium notices, and shall not be reported as premiums for any tax or regulatory purposes under chapter sixty-three, chapter one hundred and seventy-five, or any other law of the commonwealth. Assessment rates for insured employers shall apply to standard premiums for policy years beginning on or after July first following the determination of such rates. The assessment for each self-insurer shall be equal to the product of the assessment rate and the self-insurer's imputed premium multiplied by the total base amount for all self-insurers, divided by the total imputed premium for all self-insurers as determined by the department. Insurers shall transmit assessments collected during each quarter, and self-insurers and self-insurance groups shall pay assessments due each quarter to the treasurer of the commonwealth no later than one month after the end of the quarter.

Failure to pay the assessed sum will result in a fine of ten per cent of any unpaid amounts every thirty days. The commissioner may establish a commonwealth lien on any employer to collect assessments and fines for which such employer is liable under this section. Similar fines and liens may be imposed on insurers for failure to transmit assessments collected under this section.

(6) The revenue received from assessments levied under this section shall be kept in the special fund or the trust fund separate and apart from all other monies received by the commonwealth. The proceeds from any fine or fee imposed pursuant to this chapter shall be kept in the special fund. The treasurer of the commonwealth shall be the custodian of the special fund and trust fund, and revenues received shall be deposited in each fund proportional to that fund's share of the total budget. The monies in the special fund and trust fund shall be invested by the treasurer in accordance with law; provided, however, that the treasurer shall make no investments that prevent the treasurer from making timely payment of disbursements pursuant to subsections (1) and (2). Interest income and dividends from such investments shall be credited to the fund from which the interest or dividends accrue.

(7) The treasurer shall make payments from accounts of the trust fund on the submission of a warrant listing all payments to be made and the accounts to be debited, which has been approved in writing by the secretary of labor or his designee.

(8) If an insurer, self-insurer, or member of a self-insurance group is liable for a claim, all or part of which may be paid from the trust fund pursuant to clauses (a) to (d), inclusive of subsection (2), it shall first pay the claimant and then apply to the trust fund for reimbursement. If the trust fund pays compensation to a claimant pursuant to clause (e) of subsection (2), it may seek recovery from the uninsured employer for an amount equal to the amount the fund has paid to the claimant plus any necessary and reasonable attorney fees.

(9) The treasurer shall, on or before October first of each year, submit to the advisory council, the governor, the clerk of the senate, and the clerk of the house of representatives, an annual report for the previous fiscal year. The report shall include a statement of the revenues and disbursements of the special fund and trust fund for the fiscal year, the balance existing at the beginning and the end of the fiscal year for each fund, and any other information the treasurer deems appropriate. The report shall include a statement of revenues, disbursements, and the balance existing at the beginning and end of the fiscal year for private employers and a separate statement of these amounts for the commonwealth and its political subdivisions subject to this chapter.

(10) The books and records of the special fund and trust fund shall be subject to an annual audit by the auditor of the commonwealth.

(11) The intent of the separate financial reports and assessment calculations for public employers under this section is to prevent said employers from bearing inappropriate costs. Nothing in this section shall be construed to prohibit the rights of any political subdivision of the commonwealth to rescind acceptance of this chapter pursuant to section sixty-nine; provided, however, that any such rescinding political subdivision shall be deemed to be an uninsured person and shall be subject to the provisions of section sixty-six.

SECTION 56. Section 69 of said chapter 152, as so appearing, is hereby amended by inserting after the word "notwithstanding", in line 35, the words:- except as otherwise provided in a collective bargaining agreement.

SECTION 57. Section 69B of said chapter 152, as so appearing, is hereby amended by striking out, in line 9, the words "The commissioner" and inserting in place thereof the words:- Said commissioner of public employee retirement.

SECTION 58. Said chapter 152 is hereby further amended by inserting after section 75 the following two sections:-

Section 75A. Any person who has lost a job as a result of an injury compensable under this chapter shall be given preference in hiring by the employer for whom he worked at the time of compensable injury over any persons not at the time of application for reemployment employed by such employer; provided, however, that a suitable job is available. Actions may be filed under this section with the superior court department of the trial court for the county in which the alleged violation occurred. An employer found to have violated this section shall be exclusively liable to pay to the employee lost wages, shall grant the employee a suitable job, and shall reimburse such reasonable attorney fees incurred in the protection of rights granted by this section as shall be determined by the court.

In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement or chapter thirty-one, the collective bargaining agreement or said chapter thirty-one shall prevail.

Section 75B. (1) Any employee who has sustained a work-related injury and is capable of performing the essential functions of a particular job, or who would be capable of performing the essential functions of such job with reasonable accommodations, shall be deemed to be a qualified handicapped person under the provisions of chapter one hundred and fifty-one B.

(2) No employer or duly authorized agent of an employer shall discharge, refuse to hire or in any other manner discriminate against an employee because the employee has exercised a right afforded by this chapter, or who has testified or in any manner cooperated with an inquiry or proceeding pursuant to this chapter, unless the employee knowingly participated in a fraudulent proceeding. Any person claiming to be aggrieved by a violation of this section may initiate proceedings in the superior court department of the trial court for the county in which the alleged violation occurred. An employer found to have violated this paragraph shall be exclusively liable to pay to the employee lost wages, shall grant the employee suitable employment, and shall reimburse such reasonable attorney fees incurred in the protection of rights granted as shall be determined by the member. The court may grant whatever equitable relief it deems necessary to protect rights granted by this section.

(3) In the event that any right set forth in this section is inconsistent with an applicable collective bargaining agreement, such agreement shall prevail. An employee may not otherwise waive rights granted by this section.

SECTION 59. Of the initial voting appointees to the advisory council, as set forth in section fifteen of chapter twenty-three E of the General Laws, one employer and one employee representative shall be appointed for a one year term, one employer, and one employee representative shall be appointed for a two year term, one employer and one employee representative shall be appointed for a three year term, one employer and one employee representative shall be appointed for a four year term, and one employer and one employee representative shall be appointed for a five year term. Of the initial nonvoting appointees to the advisory council, the representative of the insurance industry shall be appointed for a one year term, the representative of the workers' compensation claimant's bar shall be appointed for a two year term, the representative of the commonwealth's medical community for a three year term, and the representative of rehabilitation providers for a four year term. Upon the expiration of the term of an initial council member his successor shall be appointed by the governor for a term of five years.

SECTION 60. The advisory council, established pursuant to section fifteen of chapter twenty-three E of the General Laws, may contract for a comprehensive evaluation of the workers' compensation system to be initiated on January first, nineteen hundred and eighty-nine, and completed not later than December thirty-first, nineteen hundred and eighty-nine. Such evaluation shall be conducted by a party or parties with expertise in the analysis of policy and financial issues relating to workers' compensation. The study shall be paid from funds appropriated for that purpose from the special fund established in section sixty-five of chapter one hundred and fifty-two of the General Laws.

SECTION 61. All members of the industrial accident board appointed to and currently serving terms in accordance with the provisions of section fifteen of chapter twenty-three of the General Laws, shall continue to serve as such members until the expiration of the terms to which they were appointed. All employees of the division on the effective date of this act, including those holding civil service or statutory tenure, shall be transferred to the department without impairment of rights or salaries. The chairman of the industrial accident board serving on the effective date of this act shall be the commissioner of the department of industrial accidents during the remainder of the term of the governor holding office on the effective date of this act. Failing reappointment as commissioner at any time during the remainder of his original term of appointment to the board, he shall serve as a member of the industrial accident board for the remainder of his original term in which event there shall be seventeen members of said board. The secretary of the industrial accident board serving on the effective date of this act shall serve as the deputy director of dispute resolution. The executive assistant, division of industrial accidents serving on the effective date of this act shall serve as the first deputy director of administration. The currently serving administrative head of the office of self-insurance shall serve as the first administrative head of the office of insurance.

All monies heretofore appropriated for the division of industrial accidents and remaining unexpended on the effective date of this section are hereby transferred to and shall be available for expenditure by the department of industrial accidents for the purpose of the exercise of the powers and the performance of the duties for which such monies were appropriated.

All duly existing contracts, leases and obligations of the division of industrial accidents which are in force immediately prior to the effective date of this section, shall be performed by the department of industrial accidents.

All claims, complaints, hearings and other proceedings duly brought before, and all legal and other proceedings duly begun by the division of industrial accidents or any official or agency thereof, and which are pending immediately prior to the effective date of this section, shall continue unabated and remain in force notwithstanding the passage of this act, and shall thereafter be completed before or by the department of industrial accidents.

All orders, rules and regulations duly made, by the division of industrial accidents or by any official or agent thereof, and which are in force immediately prior to the effective date of this section, shall continue in force and the provisions thereof shall thereafter be enforced, until superseded, revised, rescinded or cancelled in accordance with law, by the department of industrial accidents.

All books, papers, records, documents, equipment, and other property which immediately prior to the effective date of this section are in the custody of or maintained by the division of industrial accidents, are hereby transferred to the department of industrial accidents.

SECTION 62. To provide for supplementing the general appropriation act and for a certain new activity and project, the sum set forth in section sixty-three of this act, for the several purposes and subject to the provisions of law regulating the disbursement of public funds and the conditions pertaining to appropriations in chapter one hundred and forty of the acts of nineteen hundred and eighty-five, are hereby appropriated from the General Fund, for the fiscal year ending June thirtieth, nineteen hundred and eighty-six, the sum so appropriated to be in addition to any amount available for the purpose.

SECTION 63.

`tm;keep=no `tcol=6,B4;c1=1,9,tu,T;c2=1,78,tuc;c3=1,78,tuc;c4=11,53,tfh1;c5=15,49,tu;c6=65,14,tur `tc3 EXECUTIVE OFFICE OF LABOR. `tc1 9440-0200 `tc4 For a reserve to fund the costs incurred by the division of industrial accidents and its successor agency, the department of industrial accidents, in the implementation of this act; provided, however, that the secretary of labor is authorized to expend directly from this reserve or to transfer from this item to other items of appropriation such amounts as are necessary to meet the costs of implementing this act; provided, further, that the amount expended from this item shall be added to the special fund budget for the fiscal year beginning July first, nineteen hundred and eighty-six for the purpose of calculating the assessment rate pursuant to subsection (4) of section sixty-five of chapter one hundred and fifty-two of the General Laws, inserted by section fifty-five of this act; and provided, further, that the amount expended from this item shall be fully reimbursed pursuant to said section sixty-five on or before July first, nineteen hundred and eighty-seven; and provided, further, that no such expenditures or transfers from this item shall be made without the prior approval of the house and senate committees on ways and means `tc6 $2,752,385 `tcol;end

SECTION 64. Notwithstanding any other provision of this act or any general or special law to the contrary, the rate setting commission shall conduct a review of all rates for health care services that are provided under chapter one hundred and fifty-two of the General Laws and for which rates are set pursuant to chapter six A of the General Laws. Based upon such review, the commission shall, no later than July first, nineteen hundred and eighty-eight, revise rates that are determined to be inadequate with respect to such services. Pending such revisions, the rates for such health care services shall be set at: (1) the rate allowed in the medicare program in the commonwealth pursuant to Federal Title XVIII reimbursements for such services which are reimbursable under said program or one hundred and fifty per cent of the rate allowed on July first, nineteen hundred and eighty-five for such services, whichever is less; provided, however, that no rate for such services which is greater than that allowed under said medicare program shall be reduced under this provision; or (2) one hundred and fifty per cent of the rate allowed on July first, nineteen hundred and eighty-five for such services which are not reimbursable under said program.

SECTION 65. For the purposes of section two A of chapter one hundred and fifty-two of the General Laws, section twenty-eight A, thirty-five, thirty-eight, forty-eight, forty-nine, fifty and fifty-two of this act shall be deemed to be substantive in character.

SECTION 66. For purposes of section two A of chapter one hundred and fifty-two of the General Laws, section thirty-five C of said chapter one hundred and fifty-two, as appearing in section forty-five of this act, shall be deemed to be procedural in character.

SECTION 67. Sections thirty-five, thirty-eight, fifty-five, sixty-two and sixty-three of this act shall take effect upon its passage.

SECTION 68. Sections six, six A, nine, eleven, thirteen, twenty-nine, thirty-one, forty-two, forty-three, forty-four, forty-six, forty-seven, forty-seven A, fifty, fifty-three, fifty-four, fifty-six, fifty-eight and sixty-four of this act shall take effect on January first, nineteen hundred and eighty-six.

SECTION 69. Sections one, two, three, four, five, seven, eight, ten, twelve, fourteen, fifteen, sixteen, twenty-eight, thirty, thirty-six, thirty-seven, fifty-seven, fifty-nine, sixty and sixty-one of this act shall take effect on April first, nineteen hundred and eighty-six.

SECTION 70. Sections thirteen A, seventeen to twenty-seven, inclusive, twenty-eight A, thirty-two, thirty-three, thirty-four, thirty-nine, forty, forty-one, forty-three A, forty-five, forty-eight, forty-nine, fifty-one and fifty-two of this act shall take effect on November first, nineteen hundred and eighty-six.