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 4 of chapter 23E of the General Laws, as appearing in the 1986 Official Edition, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- 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 twenty-one members, who shall be administrative judges appointed for six year terms by the governor with the advice and consent of the council, not more than eleven of whom shall be from the same political party.

SECTION 2. Paragraph (a) of subsection (3) of section 44C of chapter 149 of the General Laws, as so appearing, is hereby amended by striking out clause (v) and inserting in place thereof the following clause:-

(v) a violation of any state or federal law regulating hours of labor, prevailing wages, minimum wages, overtime pay, equal pay, child labor, or workers' compensation.

SECTION 3. Chapter 152 of the General Laws is hereby amended by inserting after section 7E, as so appearing, the following section:-

Section 7F. The department shall keep and maintain a record of filing fees charged under section ten, penalties levied under section seven and section eight, and attorneys' fees ordered under section thirteen A, where such filing fees, penalties, or attorneys' fees are required to be paid by insurers, separately identifying those amounts which may not be utilized in the establishment of premium rates. This information shall be provided to the advisory council and to the commissioner of insurance at least once each calendar year.

SECTION 4. Section 8 of said chapter 152, as so appearing, is hereby amended by adding the following subsection:-

(6) Any sixty day payment without prejudice period herein provided may be extended to one hundred twenty days by written agreement of the parties. Such period may be further extended by agreement provided that:

(a) the agreement sets out the last day of such extension; and

(b) the department approves the agreement at a conciliation pursuant to section ten, a conference pursuant to section ten A, or a hearing pursuant to section eleven.

All the provisions of this section shall apply to any period of payment without prejudice which is extended as provided in this subsection. Any payment without prejudice under this section shall toll the statute of limitations pursuant to section forty-one.

SECTION 5. Said chapter 152 is hereby further amended by striking out section 10, as so appearing, and inserting in place thereof the following section:-

Section 10. (1) 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. No claim for weekly compensation shall be accepted by the department unless at least thirty days has passed from the date of the alleged onset of disability. On the receipt of a claim for compensation or a complaint from the insurer requesting a modification or discontinuance of benefits, or a complaint from any party requesting resolution of any other issue arising under this chapter unless otherwise expressly provided, 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 conciliation unit of the division may attempt to resolve the claim or complaint by informal means and the parties shall cooperate with any conciliator assigned to the case.

(2) Any claim or complaint shall be referred to the division of dispute resolution within fifteen business days of its receipt by the division of administration unless:

(a) the moving party fails to appear on request of the conciliation unit or provide requested information, or

(b) a conciliator authorizes an extension of the conciliation period, attaching the reasons therefor to the case file.

Any party aggrieved by an extension of the conciliation period may file a written appeal with the manager of conciliation who shall set a referral date for the case.

(3) In any instance in which the respondent to a claim or a complaint either fails to appear or is not authorized to negotiate, enter into and sign agreements as to compensation at a conciliation, said claim or complaint shall forthwith be referred to the division of dispute resolution.

(4) In each instance in which a claim or complaint is referred to the division of dispute resolution following a conciliation, the conciliator to whom the case was assigned shall forward a written report setting out the issues in controversy and the information he deems to support:

(a) his recommendation that weekly compensation or other benefits should or should not be paid;

(b) his recommendation that weekly compensation or other benefits should or should not be modified or terminated; or

(c) his report that the information available at the conciliation is insufficient for determining whether weekly compensation or other benefits should be paid, modified, or terminated.

(5) 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 at that time; provided, however, that in the event that the insurer failed to appear at a scheduled conciliation, and such failure was not beyond the control of said insurer, the referral fee shall be one hundred and thirty per cent of the average weekly wage in the commonwealth at that time. In such event the referral fee shall not be included in any formula utilized to establish premium rates for workers' compensation insurance. Any referral fee shall be paid into the Special Revenue Fund established pursuant to section sixty-five.

SECTION 6. Said chapter 152 is hereby further amended by striking out section 10A, as so appearing, and inserting in place thereof the following section:-

Section 10A. (1) On referral from the division of administration of a claim for compensation or a complaint for modification or discontinuance of benefits, said claim or complaint shall be immediately assigned to an administrative judge. The administrative judge shall require the parties to appear before him for a conference within twenty-eight days of receipt of the case by the division of dispute resolution. The administrative judge may require and receive reports of injury, signed statements of the employee and any witnesses, medical, hospital, and rehabilitation records, and other written and oral matter. At the conference, the parties shall identify the issues in dispute and they shall produce a summary of any anticipated testimony.

(2) Within seven days of the conclusion of the conference the administrative judge shall file:

(a) a written order requiring or denying that weekly compensation or other benefits be paid; or

(b) a written order modifying, terminating, or denying modification or termination of weekly compensation or other benefits.

(3) Any party aggrieved by an order of an administrative judge shall have fourteen days from the filing date of such order within which to file an appeal for a hearing pursuant to section eleven. Such hearing shall be held within twenty-eight days of the department's receipt of such appeal.

Failure to file a timely appeal or withdrawal of a timely appeal shall be deemed to be acceptance of the administrative judge's order and findings, except that a party who has by mistake, accident or other reasonable cause failed to appeal an order within the time limited herein may within one year of such filing petition the commissioner of the department who may permit such hearing if justice and equity require it, notwithstanding that a decree has previously been rendered on any order filed, pursuant to section twelve.

SECTION 7. Section 11C of said chapter 152, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following two sentences:- Any party aggrieved by a decision of an administrative judge after a hearing held pursuant to section eleven shall have thirty days from the filing date of such decision within which to file an appeal from said decision to the reviewing board. A party who has by mistake, accident, or other reasonable cause failed to appeal from a decision within the time limited herein may within one year of the filing of said decision petition the commissioner of the department who may permit such appeal if justice and equity require it, notwithstanding that a decree has previously been rendered on any decision filed, pursuant to section twelve.

SECTION 8. Said chapter 152 is hereby further amended by striking out section 13A, as so appearing, and inserting in place thereof the following section:-

Section 13A. (1) Whenever an insurer contests a written claim for benefits, submitted on a form prescribed by the department, including a claim for unpaid medical bills, by failing to commence compensation within fourteen days of receipt of such a claim, and then, at any time prior to five days before a hearing pursuant to section eleven, the insurer agrees to pay with or without prejudice or is ordered to pay the compensation due, said insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to two times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that an administrative judge may increase such fee based on the complexity of the dispute or the effort expended by the attorney; and provided, further, that only one such fee shall be paid with respect to such written claim under this paragraph. An insurer shall reduce such a fee to one time the average weekly wage in the commonwealth at that time, when said attorney failed to appear at a scheduled conciliation and such failure was not beyond the control of said attorney. For purposes of this paragraph, the filing of a subsequent written request for benefits shall be deemed an additional written claim for benefits.

(2) Whenever an insurer files a complaint to reduce or discontinue an employee's benefits but withdraws such complaint prior to five days before a hearing pursuant to section eleven, or whenever an employee prevails pursuant to an order modifying or denying modification or discontinuance of weekly compensation or other benefits, such insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to two times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that an administrative judge may increase such fee based on the complexity of the dispute or the effort expended by the attorney. An administrative judge shall reduce such a fee to one time the average weekly wage in the commonwealth at that time, when said attorney failed to appear at a scheduled conciliation, and such failure was not beyond the control of said attorney.

(3) Whenever an insurer files a complaint or contests a claim for benefits and then (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 insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to seven times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that an administrative judge may increase such fee based on the complexity of the dispute or the effort expended by the attorney.

(4) Whenever an insurer appeals a decision of an administrative judge and the employee prevails in the decision of the reviewing board, the insurer shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by the employee. Such fee shall be an amount equal to three times the average weekly wage in the commonwealth at that time, plus necessary expenses; provided, however, that the reviewing board may increase such fee based on the complexity of the dispute or the effort expended by the attorney.

(5) Whenever an employee appeals a decision of an administrative judge and the employee prevails in the decision of the reviewing board, the employee shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by said employee. Subject to the approval of the reviewing board, such fee shall be an amount agreed to by the employee and his attorney.

(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 or prior to a decision of an administrative judge, the reviewing board, or the appeals court of the commonwealth finding 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 insurer acceptance of liability or subsequent to a decision of an administrative judge, the reviewing board, or the appeals court of the commonwealth finding insurer liability which is in effect at the time such agreement is entered into, such fee shall be no more than twenty per cent of amount of such settlement.

(7) In any hearing or review requested by an insurer or self-insurer aggrieved by an order or decision with respect to an injury occurring prior to November first, nineteen hundred and eighty-six, or in a proceeding brought by an insurer or self-insurer as to the continuance of compensation being paid under this chapter for an injury occurring prior to November first, nineteen hundred and eighty-six, there shall be awarded an amount sufficient to compensate the employee for the reasonable costs of such hearing, review or proceeding, including reasonable counsel fees and expenses, provided that the employee prevails at such hearing, review or proceeding. Such amounts shall be paid by the insurer or self-insurer. Any other attorneys fees for services provided claimants for injuries prior to November first, nineteen hundred and eighty-six, shall be of an amount agreed upon between the employee and the attorney.

(8) The attorneys' fees specified in this section shall be the only fees payable for any services provided to employees under this chapter.

(9) In any proceeding at which a penalty pursuant to section seven is awarded an employee by an administrative judge, the attorney's fee payable for such proceeding shall not be included in any formula utilized to establish premium rates for workers' compensation insurance.

SECTION 9. 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. (1) Except as otherwise provided by section seven, any payment of compensation shall be by written agreement by the parties and subject to the approval of the department. Any other questions arising under this chapter may be so settled by agreement. Said 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.

(2) Any withdrawal of a complaint for discontinuance of compensation shall be made in writing and filed with the department and the employee. Pursuant to section twelve, the trial court for the county in which the injury occurred may order that any attorney's fees prescribed under section thirteen A shall be paid.

SECTION 10. Said chapter 152 is hereby further amended by striking out section 25C, as so appearing, and inserting in place thereof the following section:-

Section 25C. (1) Whenever the commissioner or his designee determines that an employer who is required to provide for the payment to his employees of the compensation provided for by the chapter has failed to do so, a stop work order shall be served on said employer, requiring the cessation of all business operations at the place or employment or job site. Such order shall take effect ten days after the date of its service upon said employer, unless such employer provides evidence, satisfactory to the commissioner or his designee, of having secured any necessary insurance or self-insurance and pays a civil penalty into the private employer trust fund in the amount of one hundred dollars per day for each day such employer was not in compliance with this chapter, counting the date of service of the stop work order as the first day and date of payment of the penalty herein provided and of production of evidence of insurance or self-insurance as the final day.

(2) Any employer who is aggrieved by the imposition of a stop work order shall have ten days from the date of its service to appeal such order. Any employer who timely files such appeal shall be granted a hearing by the commissioner or his designee within fourteen days of receipt of appeal. The stop work order shall not be in effect during the pendancy of any timely filed appeal. Any stop work order and monetary penalty shall be rescinded if the commissioner or his designee finds at the hearing that the employer has at all times been in compliance with this chapter. If the commissioner or his designee finds at the hearing that the employer did or has not provided for all insurance or self-insurance required by this chapter, the stop work order shall be effective immediately on the conclusion of the hearing and shall remain in effect until such time as the employer provides evidence, satisfactory to the commissioner or his designees, of having secured any necessary insurance or self-insurance and pays a civil penalty into the private employer trust fund in the amount of two hundred and fifty dollars per day for each day such employer was not in compliance with this chapter, counting the date of service of the stop work order as the first day and the date of payment of the penalty herein provided and of production of evidence of insurance or self-insurance as the final day.

A stop work order and any monetary penalties assessed by the commissioner after a hearing as authorized in this section shall be final at the expiration of thirty days if no action for judicial review of such decision is commenced pursuant to chapter thirty A. Any person who institutes proceedings for judicial review of the final assessment of a penalty by the commissioner pursuant to this section, shall place the final amount of the assessment in an interest-bearing escrow account in the custody of the clerk/magistrate of the reviewing court. The establishment of such interest-bearing account shall be a condition precedent to the jurisdiction of the reviewing court unless the party demonstrates in a preliminary hearing held within twenty days of the filing of the complaint either the presence of a substantial question for review by the court or an inability to pay. Upon such a demonstration, the court may grant an extension or waiver of the interest-bearing escrow account or may require, in lieu of such account, the posting of a bond payable directly to the Private Employer Trust Fund in the amount of one hundred and twenty-five per cent of the assessed penalty. If, after judicial review, in the case where the requirement for an escrow account has been waived, and in the case where a bond has been posted, the court affirms the penalty in whole or in part, the penalty assessed by the commissioner shall be paid with interest at the rate set forth in section six C of chapter two hundred and thirty-one. If, after such review in a case where an interest-bearing escrow account has been established, the court affirms the penalty in whole or in part, the penalty shall be paid with accumulated interest from such account. If the court sets aside the penalty the amount placed in such account or the amount posted for such bond shall be repaid together with any interest thereon.

(3) Any law enforcement agency in the commonwealth shall, at the request of the commissioner, render any assistance necessary to carry out the provisions of this section, including but not limited to preventing any employee or other persons from remaining at a place of employment or jobsite after a stop work order has taken effect.

(4) Any employee affected by a stop work order pursuant to this section shall be paid for the first ten days lost pursuant to such order and any time lost pursuant to this section not exceeding ten days shall be considered time worked under the provisions of chapter one hundred and forty-nine.

(5) In addition to being subject to the civil penalties herein provided, an employer who fails to provide for insurance or self-insurance as required by this chapter shall be punished by a fine of not more than one thousand five hundred dollars or by imprisonment for not more than one year, or both. Failure of an employer, after imposition of such fine or imprisonment, to provide for insurance or self-insurance under this chapter after notice by the department to do so shall, as to each notice, be deemed a further violation in respect thereof, subject to an additional fine and imprisonment. If such employer is a corporation, the president or treasurer or both shall be liable for said punishment. The commissioner or his designee shall have power to bring complaints against employers, including the president and treasurer of a corporation which is an employer, for violations of the provisions of this subsection, and to prosecute the same, and for such purpose may deputize one or more employees of the department to make and prosecute complaints. Complaints under this subsection shall be brought in the district court in which the principal place of business of such employer is situated, or in the district court in whose district such president or treasurer of a corporation resides.

(6) Every state or local licensing agency shall withhold the issuance or renewal of a license or permit to operate a business or to construct buildings in the commonwealth for any applicant who has not produced acceptable evidence of compliance with the insurance coverage required by this chapter.

(7) Neither the commonwealth nor any of its political subdivisions shall enter into any contract for the performance of public work until acceptable evidence of compliance with the insurance requirements of this chapter have been presented to the contracting authority.

(8) Any judgements obtained by the department requiring employer reimbursements or other payments into the private employer trust fund, and any penalties due pursuant to the service of a stop work order under this section shall, until collected, constitute a lien upon the entire interest of the employer, legal or equitable, in any property, real or personal, tangible or intangible; provided, however, that such lien shall be subordinate to claims for unpaid wages and any prior recorded liens; and provided, further, that no lien created by this section shall be valid against a subsequent purchaser or mortgagee in good faith and for value of real or personal property from or of such employer, or against a subsequent attaching creditor, unless, with respect to real estate of the employer, a notice of such lien is recorded in the registry of deeds for the county where such real estate is located, and, with respect to personal property of the employer, said notice is recorded with the clerk of the city or town where such personal property is located.

SECTION 11. Section 29 of said chapter 152, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- 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 calendar days.

SECTION 12. Subsection (2) of section 48 of said chapter 152, as so appearing, is hereby amended by striking out the first paragraph and inserting in its place the following paragraph:-

When the insurer and the employee reach such agreement subsequent to insurer acceptance of liability or subsequent to a decision of an administrative judge, the reviewing board, or an appeals court of the commonwealth finding insurer liability which decision is in effect at the time such agreement is entered into, said agreement shall not redeem liability for the payment of medical benefits or vocational rehabilitation benefits with respect to such injury.

SECTION 13. Section fifty-two of said chapter one hundred and fifty-two is hereby repealed.

SECTION 14. Section 53A of said chapter 152, as appearing in the 1986 Official Edition, is hereby amended by adding the following subsection:-

(11) The commissioner shall establish a procedure for the identification and separate annual reporting by each insurer of any penalty payments and legal fees which this chapter requires to be excluded from any formula utilized to establish premium rates for workers' compensation insurance. Said commissioner may compare said reports by insurers to records of such penalty payments and legal fees maintained by the department of industrial accidents in order to judge the accuracy of said reports.

SECTION 15. Section 65 of said chapter 152, as so appearing, is hereby amended by adding the following subsection:-

(13) When a claim is made against the Workers' Compensation Trust Fund for payment of compensation pursuant to clause (e) of subsection (2), the employer may be joined as a party by an administrative judge, on the motion of the claimant or the representative of the Fund.

SECTION 16. Notwithstanding the provisions of section four of chapter twenty-three E of the General Laws, or any other general or special law to the contrary, the governor, with the advice and consent of the council, shall appoint, in addition to the members of the industrial accident board provided for in said section four of said chapter twenty-three E, seven temporary members of said board for a two year term; provided, however, that said temporary members may be recalled pursuant to section seven of said chapter twenty-three E. Said temporary members under no circumstances shall be retained beyond such time that the backlog of cases for which the positions were created, is completed. Said temporary members shall receive the same salary as that paid to members of the board appointed under said section four. Said temporary members shall devote their full time during normal business hours to the duties of their office.

The commissioner of the department of industrial accidents serving 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 industrial accident board, shall serve as a member of said board for the remainder of said original term, in which event the total membership of said board shall be increased by one.

SECTION 17. For the purpose of implementing the provisions of this act, there is hereby appropriated the following amount: `tm;keep=no

`tcol=6,B4;c1=1,9,tu,T;c2=1,78,tuc;c3=1,78,tuc;c4=12,53,tfh1;c5=15,49,tu;c6=66,13,tur `tc3 EXECUTIVE OFFICE OF LABOR. `tc2 Department of Industrial Accidents. `tc1 9440-0200 `tc4 For the administration of the department and the advisory council; provided, that the General Fund will be reimbursed for monies appropriated under this account, with the exception of monies expended for the department's backlog elimination project, from assessments levied pursuant to section sixty-five of chapter one hundred and fifty-two of the General Laws; provided further, that the amount expended under this item which is to be so reimbursed may be added to the special fund budget for the fiscal year beginning July first, nineteen hundred and eighty-eight 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; provided further, that monies expended for said backlog elimination project shall not exceed three hundred forty-three thousand six hundred and forty-seven dollars; and provided further, that the amount of monies expended for said backlog elimination program and not assessed shall be calculated by the department of industrial accidents and certified by the commissioner of administration, of which twenty shall be temporary positions assigned to the department's backlog elimination project, including not more than three hundred and two positions `tc6 $948,680 `tcol;end

SECTION 18. For the purposes of section two A of chapter one hundred and fifty-two of the General Laws, subsections one to six, inclusive, and subsections eight and nine of section eight of this act shall be deemed to be substantive in character and shall apply only to injuries occurring on or after November first, nineteen hundred and eighty-six.

SECTION 19. Section eleven of this act shall apply only to injuries occurring on or after December tenth, nineteen hundred and eighty-five.