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
...