Code of Massachusetts Regulations › 452 CMR - DEPARTMENT OF INDUSTRIAL ACCIDENTS › Title 452 CMR 3.00 - Workers' Compensation Trust Fund › Section 3.04 - Claims Involving Uninsured Employers

Current through Register 1525, July 5, 2024
(1) The Trust
			 Fund shall not be liable for any settlement or judgment in a personal injury
			 action brought under M.G.L. c. 152, §§ 66 and 67. The Trust Fund
			 shall not be deemed to be an insurer except as expressly provided by MGL c. 152
			 and 452 CMR 3.00.
(2) As a
			 condition precedent to the filing of a claim against the Trust Fund or to the
			 joinder of the Trust Fund by any party, the claimant or party shall obtain from
			 the Office of Insurance a written certification that, according to the
			 Department's records, the employer was not covered by a workers' compensation
			 insurance policy on the date of the alleged injury. The director of the Office
			 of Insurance or his designee shall sign the certification. When the claimant
			 files the claim with the Office of Claims Administration, the claimant shall
			 attach the certification and also submit a copy of the claim and certification
			 to the Office of Legal Counsel.
(3)
			 A representative of the Trust Fund may controvert any claim filed against the
			 Trust Fund, raise any defense or assert any right granted to a party defendant
			 or complainant under M.G.L. c. 152 and 452 CMR 3.00, and file a complaint for
			 modification or discontinuance based on any recognizable ground in the same
			 manner as an insurer. The reasonable costs of representing the Trust Fund may
			 be paid out of the Trust Fund. However, the Trust Fund shall not be required to
			 pay any filing fee required by M.G.L. c. 152. The Director or his or her
			 designee may represent the Trust Fund in any administrative or judicial
			 proceeding.
(4) A representative of
			 the Trust Fund may modify or terminate the payment of compensation only on the
			 claimant's return to employment or death, the expiration of an agreement for
			 the payment of compensation for a closed period, the expiration of a defined
			 statutory period of benefits, the execution of an agreement of modification or
			 discontinuance, including an agreement redeeming future compensation, or the
			 issuance of an order or decision of an administrative judge, the Reviewing
			 Board, or any court of competent jurisdiction.
(5) A claimant filing a claim against the
			 Trust Fund shall notify the Director or his or her designee, in writing, of any
			 personal injury action brought by said claimant against the alleged uninsured
			 employer or any other person. Within 60 calendar days of the receipt of any
			 monies paid in settlement of any such action, or in satisfaction of a judgment
			 in any such action, the claimant shall remit to the Trust Fund an amount equal
			 to the compensation paid by the Trust Fund as of the date of such settlement or
			 judgment, unless the Trust Fund and the claimant agree on the remittance of a
			 lesser amount. Any interest recovered in such action shall be apportioned
			 between the claimant and the Trust Fund, and any attorney's fee shall be paid
			 by the Trust Fund and claimant, in proportion to the amounts received by them
			 in such settlement or judgment. Any future compensation payable by the Trust
			 Fund may be offset by the amount of the settlement or judgment which exceeds
			 the amount of compensation paid by the Trust Fund as of the date of such
			 settlement or judgment, unless the Trust Fund agrees to waive such
			 offset.
(6) In any action brought
			 by the Trust Fund against an uninsured employer under M.G.L. c. 152, §
			 65(8), the Trust Fund may seek recovery of any costs incurred in the Trust
			 Fund's defense against a claim for compensation or in the prosecution of said
			 action.
(7) For the purposes of
			 M.G.L. c. 152, § 65(2)(e), a claim against the Trust Fund shall not lie
			 when the claimant's injury appears to be covered under the provisions of M.G.L.
			 c. 152, § 18. When a claim has been filed under said section, there shall
			 be no right of joinder against the Trust Fund.
(8) For the purposes of M.G.L. c. 152, §
			 65(2)(e), no public employer shall be considered to be uninsured.