Pay Your Massachusetts Conference Orders on Time! A Cautionary Tale from the Review Board

In March 2019, the Massachusetts Workers’ Compensation Review Board issued findings against National Union Fire in the case of Brian Weisner v. American Architectural Iron, reversing a decision denying the employee’s claim for maximum penalty pursuant to M.G.L. c. 152 s. 8(1), and awarding $10,000 in penalties to the claimant.

M.G.L. c. 151 s. 8(1) proves that:

“Any failure of an insurer to make all payments due an employee under the terms of an order, decision, arbitrator's decision, approved lump sum or other agreement. . . within fourteen days of the insurer's receipt of such document, shall result in a penalty of two hundred dollars, payable to the employee to whom such payments were required to be paid by the said document; provided, however, that such penalty shall be one thousand dollars if all such payments have not been made within forty-five days, two thousand five hundred dollars if not made within sixty days, and ten thousand dollars if not made within ninety days.”

In a conference order pursuant to s. 10A, the insurer was ordered to reimbursement prescription medications under sections 13 and 30. Despite the order, the insurer only elected to reimburse the claimant for payments of one medication, but not for the other three medications. Consequently, claimant’s counsel filed a claim for penalties under s. 8(1), requesting the issue be joined for hearing.  

Claimant conceded that the claim for s. 8(1) penalties did not meet the regulatory requirements that the claim be accompanied by an affidavit setting forth the date the payment was due, when any payment was made, and the amount of the penalty owed.  The lower court declined to order penalties because the claimant failed to follow proper procedure for filing a penalties claim. Claimant appealed the hearing decision.

In a decision authored by Judge Fabricant, the Review Board found that essential compliances with the regulations was sufficient for the court to award s. 8(1) penalties. The Review Board noted that the claim for penalties was entered into the record, and claimant testified about the prescription details and amounts owed. The Review Board found that the claimant’s testimony essentially served as his affidavit.

The full decision can be found on the Massachusetts Department of Industrial Accidents website: https://www.mass.gov/decision/brian-weisner-v-american-architectural-iron.

This Review Board decision is an important reminder to insurers and claims professionals to pay careful attention to Conference Order deadlines in Massachusetts. Of course, if you have questions about compensability, or statutory timelines, Chartwell Law is here to provide support and answer questions.

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