Workers' Compensation Insurer Dilemma -

The Workers’ Compensation Act was designed to be administered in a simple and summary manner that provides injured workers with timely access to the Department of Industrial Accidents. The first step in the workers’ compensation battle is a conference before an Administrative Judge who issues a temporary order following a conference at the Department of Industrial Accidents. The subject of these conferences is typically a claim for benefits filed by an injured worker whose claim has been denied by the insurance company, or a request by the insurance company to reduce or entirely stop paying weekly benefits. The order issued by the Judge either instructs an insurer to start paying, or allows it to reduce or stop paying the injured worker.

While timely access is essential, if an insurer refuses to honor the order of the Judge, then such an appearance is meaningless. The insurance company, which enjoys a superior economic position over an injured worker, may be allowed to stop paying, and the employee’s only recourse is to request a hearing before the Department. The injured worker cannot compel the insurer to continue to pay, as he or she must first successfully complete the hearing process, which can take as much as a year. However, if the employee prevails, what happens if the insurer decides it is not going comply, and refuses to make the payments ordered?

The legislature recognized that these orders must have compelling force in order to carry any weight. For years, an employee’s only remedy was to pursue an enforcement action in the Superior Court, a process, which if appealed, might take far more time. The Legislature provided additional incentive for insurers to comply with orders when it enacted penalties provisions when an insurer fails to make timely payments of benefits ordered by a Judge following a conference. Section 8(1) of the Workers’ Compensation Act provides that penalties from $200.00 to $10,000.00 are payable to employees when an insurer refuses to make all payments ordered within the time frame defined in the statute.

Even with such large penalties, insurers continue to abuse their economic bargaining position to gain advantages over injured workers. It was set against this background that Attorney Joseph Burke pursued sanctions against the MBTA, one of the region’s largest self-insured employers, for its refusal to pay Christopher McCarthy benefits, which Attorney Burke won for him at a conference.

When the T defiantly refused to pay Mr. McCarthy, Burke successfully pursued the penalties provided in the Massachusetts Workers’ Compensation Act for him. The Administrative Judge, whose order was ignored by the T, awarded Mr. McCarthy a $ 10,000.00 penalty. Unfazed by this order, the T appealed to the DIA Reviewing Board, which upheld the decision of the Administrative Judge.

Undeterred, the T took its appeal to the Appeals Court of the Commonwealth. The Appeals Court rejected the arguments of the MBTA when it affirmed the decisions of the Department of Industrial Accidents. Mr. McCarthy, and the system prevailed. This case is an example of what one must be willing to do to protect the rights of the injured workers of this Commonwealth. It sends a clear and unequivocal message that there are lawyers who are willing to take the fight to insurers and employers. And it sends an equally important message that Courts of this Commonwealth will respond by protecting the rights of the injured.

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