Weisner, 031219 MAWC, 017266-02

Case DateMarch 12, 2019
CourtMassachusetts
Brian D. Weisner Employee
American Architectural Iron Employer
National Union Fire Insurer
No. 017266-02
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
March 12, 2019
         This case was heard by Administrative Judge Maher.           William R. Reitzell, Esq., for the employee           Thomas G. Bradley, Esq., for the insurer           Fabricant, Koziol and Harpin, Judges.           REVIEWING BOARD DECISION           FABRICANT, J.          The employee appeals a decision denying his claim for the maximum penalty pursuant to G. L. c. 152, § 8(1).[1] The employee had asserted the insurer failed to comply with a § 10A conference order to reimburse him for payment of certain prescription medications. The judge found the employee did not follow the proper filing procedure to perfect his claim pursuant to 452 CMR § 1.07(2)(b).[2] For reasons discussed below, we reverse the decision.          We recount only the facts necessary to discuss the employee’s issues. The employee’s claim arises out of the insurer’s failure to make all payments due under the terms of a March 16, 2016, § 10A conference order awarding the reimbursement of §§13 and 30 prescription medications.[3] The insurer filed a timely appeal, and the case was scheduled for hearing de novo. (Dec. 2.)          On June 7, 2016, prior to the scheduled date of hearing, the employee filed a claim for penalties pursuant to § 8(1), with a request that it be joined at hearing.[4] The employee concedes that the claim did not meet the requirements of 452 CMR § 1.07(2)(b). Specifically, it was not accompanied by an affidavit setting forth the date the payment was due, when any payment was made, and the amount of the penalty owed. (Employee br. 2.) At hearing, the judge allowed the employee’s motion to join the § 8(1) penalty claim.          On April 25, 2017, after the close of evidence, but before the issuance of the hearing decision, the insurer paid the reimbursement of prescription expenses previously ordered at conference.[5] The judge made the following ruling of law:
The insurer did not make all of the ordered reimbursements. Therefore they are technically in violation of the Statute and could be responsible to pay the employee a Section 8 penalty. . . .
It is my determination, despite the insurer’s failure to pay the order, the employee did not follow the requirements of 452 Code of Mass. Regulations Section 1.07(2)(b) that provides “claims for penalties under M. G. L. c. 152 [§] 8(1) shall be accompanied by a copy of the order…, together with an affidavit signed by the claimant’s
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