***ALERT***
LIST AND PRESERVE YOUR DEFENSES!
ALL defenses should be
LISTED and PRESERVED on the Denial
FORM 104
and the Termination
FORM 106
!
The Listing and Preservation of the Insurer’s Defenses upon a
Form 104 Denial
or a
Form 106 Termination
is the first step in the litigation process. So list and preserve all appropriate defenses or they may not be raised at a subsequent DIA proceeding.
Recent decisions from the Reviewing Board and objections by employees’ counsel at DIA proceedings now require a heightened awareness to raise and protect all applicable defenses.
Sections 7(1) and 8(1) contain similar language stating:
“
The notice shall specify the grounds and factual basis for the refusal to commence payment of said benefits and shall state that if no claim has yet been filed, benefits will not be secured for the alleged injury unless a claim is filed with the department and insurer within any time limits provided under this chapter. Any grounds and basis for noncompensability specified by the insurer shall, unless based upon newly discovered evidence, be the sole basis of the insurer’s defense on the issue of compensability in any subsequent proceeding
.”
What this means is that if a specific defense is not listed or retained upon a
Form 104
or
Form 106
then the insurer will not be able to raise or assert that defense at the Conference or Hearing.
The Rules of the DIA describe the specificity and timing of defenses.
1.02 Factual Basis for an Insurer’s Refusal to Pay Compensation
as used in
MGL c. 152, § 7
and
MGL c. 152, § 8
, shall be a short and plain statement of the specific facts supporting the grounds for said refusal.
(For example, if you want to dispute liability because the injury was not reported as work related.)
1.04: Insurer’s Notice of Refusal to Pay Compensation:
Subject to the provisions of
MGL c. 152, § 7(1)
and
MGL c. 152, § 8(1)
, as to newly discovered evidence, no grounds for refusal to pay compensation shall be allowed as a defense unless the insurer’s notice of refusal contains a statement of the factual basis supporting such grounds. No ground or factual basis sought to be raised by an insurer on newly discovered evidence shall be allowed as a defense unless the insurer reports each such ground or factual basis to the injured employee and the Department not less than five working days before any conference or hearing, provided that if such evidence is not in fact discovered until a time within such five day period, a continuance may be granted at the judge’s discretion if requested by the insurer at the conference or hearing.
We have attached both a
Sample Form 104 “Insurer’s Notification of Denial”
and a
Sample Form 106 “Insurer’s Notification of Termination or Modification of Weekly Compensation During Payment-Without-Prejudice Period”
for your use. All of the defenses in the attached should always be raised at a minimum.
Additional defenses that may need to be added in certain circumstances are the heightened standard of causation contained in §1(7A), No Coverage, No Employee/Employer Relationship, §27- Willful Misconduct of the Employee, §27A False Representation of Physical Condition by an Employee and Denial of §28 Willful Misconduct of the Employer.
If you suspect any of these additional defenses may need to be raised, please review with a TKCK attorney.
You should review the FORM 110 to identify all the claims being asserted AND RESPOND IN KIND. Many claim Forms 110 are now listing Sections 7 & 8 in an effort to limit your defenses to the claim.
Again, if you’re not sure if an additional defense should be raised, consult with a TKCK attorney.
Save the date!
Our annual holiday party will be held
Thursday, December 13, 2018
at our office in Charlestown, MA.
We wish to congratulate several attorneys in our firm for being selected as “Super Lawyers” or “Rising Stars”:
Matthew Slater
: Super Lawyer, Personal Injury General: Defense
Brian Prindle
: Super Lawyer, Workers’ Compensation
Michael Marshall
: Rising Star, Employment & Labor
Nicholas Chrissis
: Rising Star, Workers’ Compensation (3rd year!)
Robert Martin
: Rising Star, Workers’ Compensation
Alissa Grady
: Rising Star, Workers’ Compensation
Patrick Battersby, Jr.
: Rising Star, Workers’ Compensation