1.07: Claims and Complaints

(1) A claim for compensation may be filed by any person, including an employee, dependent, physician, hospital or other health care provider, who believes that benefits are due under M.G.L. c. 152.

(2) Pursuant to the provisions of M.G.L. c. 152, 7G, the following documentation must be attached to a claim for benefits, or complaint for modification or discontinuance of benefits before it will be processed by the Office of Claims Administration:

(a) Any claim for a recalculation of the compensation rate under M.G.L. c. 152, 1 shall be accompanied by one or more of the following:

1. an affidavit attesting to the reasons why the weekly rate is incorrect;
2. a wage schedule of the employee or an affidavit attesting that a demand for a wage schedule was upon the employer, concurrent employer and/or insurer without success, together with a brief recitation of why the claimant alleges the average wage is inaccurate and why the wage schedule is needed;
3. all relevant pay stubs;
4. a W-2 tax form or any of the above documents for a comparable worker where pursuant to M.G.L. c. 152, 1(l), such information is applicable. Where concurrent employment is at issue, documentation as listed above shall be furnished for all concurrent employers, together with an affidavit attesting to the name of the concurrent employer and its insurer during the relevant period of concurrent employment.

(b) Claims for penalties under M.G.L. c. 152, 8(1) shall be accompanied by a copy of the order, decision, arbitrator's decision, approved lump sum or other agreement or other relevant documents(s) with which it is alleged the insurer has failed to comply, together with an affidavit signed by the claimant or the claimant's attorney attesting to the date payment was due, the date, if any, on which payment was made, and the amount of the penalty the claimant is owed.

(c) Claims filed pursuant to M.G.L. c. 152, 30 shall be accompanied by the following:

1. Claims for payment for adequate and reasonable health care services shall, where applicable, be accompanied by the following:

a. the dates of service;

b. the type of treatment or service and the itemized costs;

c. office notes, hospital records, or a statement from the attending physician or medical vendor that such visit, testing, prescription drug, therapy, or ancillary medical service device or aid was reasonable, necessary, and causally related to the injury for which the employee is eligible for benefits.

2. Claims for mileage reimbursement necessarily incidental to the provision of adequate and reasonable medical services shall be accompanied, where applicable, by the following:

a. an itemized bill confirming the date and location of treatment;

b. an affidavit from the claimant or the claimant's attorney attesting to the exact mileage from the employee's home to the site of the treatment and back, and, except where the travel is incidental to an examination requested by the insurer or the department, the purpose of the treatment and reason for the trip;

c. copies of parking receipts, canceled checks or receipts, together with documentation from the provider, except where the travel is incidental to an examination requested by the insurer or the Department, relating the service to the industrial injury and deeming it reasonable and necessary.

All bills presented shall, where possible, contain treatment codes, the percentage of reimbursement to which the hospital is entitled and the provider's tax identification number.

d. All claims for payment of an attorney's fee shall be accompanied by an order, decision, arbitrator's decision, lump sum or other agreement for compensation, or, where necessary, a memorandum outlining the circumstances giving rise to the entitlement of an attorney's fee under the appropriate subsection of M.G.L. c. 152, 10B or 13A. Where necessary expenses have not been paid, a memorandum shall also outline the nature and amount of the expenses and be accompanied by receipts or proof of expenditures. Each claim shall be accompanied by an affidavit signed by the attorney attesting that payment of an attorney fee is owed and that the insurer has refused or neglected to pay the fee after being notified by certified mail that the fee and/or necessary expenses are owed and unpaid and that 14 days have passed since said notice was received.

e. Claims for payment of funeral expenses shall be accompanied by an itemized funeral bill together with a copy of a death certificate.

f. Claims for benefits under M.G.L. c. 152, 31 shall be accompanied by a copy of a death certificate and the documentation required for filing a dependency benefit claim under M.G.L. c. 152, 35A. Claims for benefits under M.G.L. c. 152, 34, 34A and 35 shall be accompanied by a copy of a physician's report or record not more than six months old that describes the extent and duration of the employee's physical or emotional incapacity for work and which relates said incapacity to the claimed industrial injury.

g. All claims for cost-of-living adjustments pursuant to M.G.L. c. 152, 34B shall be accompanied by an affidavit attesting to the date of injury under which the employee is collecting weekly compensation, the present section of M.G.L. c. 152 under which benefits are being paid, and the date of eligibility for the commencement of the claimed cost-of-living adjustments. This affidavit must be signed by the claimant or claimant's counsel. The claim must also be accompanied by a signed release for the Social Security office on form CR-28 (Commonwealth of Massachusetts Cost of Living Adjustment Data Form).

h. In any claim in which M.G.L. c. 152, 35A is the only benefit claimed and where dependency is requested for dependents who are conclusively presumed to be dependent under M.G.L. c. 152, 35A, the claim shall be accompanied, where applicable, by a copy of one or more of the following:

1. the marriage license and a notarized statement from the dependent's spouse confirming that the spouse was living with the employee at the time of the injury;
2. birth certificates for each child younger than 18 years old, or, if older than 18 years of age, an affidavit attesting to the circumstances under which the child qualifies as a dependent under M.G.L. c. 152, 35A(c);
3. any court order or decree or court approved agreement requiring the employee to pay child support; or
4. an affidavit by a parent of an unmarried child younger than 18 years old attesting to the parent's dependency upon the support of the child.

(i) All claims for benefits under the provisions of M.G.L. c. 152 36 or 36A shall be accompanied by the following:

The claimant or his counsel shall also include in the signed written statement a detailed description of the nature and quality of the scarring or disfigurement, including color of the scar, and whether or not it has visible stitch marks or other visible, anatomical deformities, or, in the alternative, a dated color photograph which is of reasonable clarity and which depicts a ruler, tape or other measuring device placed in proximity of the scar being claimed which can be clearly seen by someone viewing the photograph, showing the length of scar being claimed.

No claims for scarring and disfigurement under the provisions of M.G.L. c. 152, 36 may be filed sooner than six months following the date of injury or the surgery which is the basis of the claim for scarring or disfigurement, except that disfigurement claims relating to limps or use of canes may not be filed before an end medical result has been reached.

1. Claims for functional loss shall include a physician's report which indicates that a maximum medical improvement has been reached and which contains an opinion as to the percent of permanent functional loss according to the American Medical Association's guide to physical impairment. There shall also be a statement from the claimant, or the claimant's attorney or other authorized representative indicating the specific monetary value of the benefit award being sought as reflected by the opinion of the physician's accompanying report. No claim for functional loss may be filed sooner than six months following an injury or the latest surgery resulting from the injury.
2. Claims for scarring or disfigurement under M.G.L. c. 152 shall be accompanied by a physician's report, operative note, or other hospital record, describing the area of scarring or disfigurement in detail, including its length, size, and exact location, and a signed written statement by the claimant or the claimant's counsel indicating the specific monetary value of the benefit award being sought.

(j) A complaint requesting modification or discontinuance of benefits made pursuant to M.G.L. c. 152, 10 shall be accompanied, where applicable, by the following documentation:

1. hospital and medical records;
2. physician's report(s) opining work capacity which shall be no more than six months old;
3. an investigator's report or a synopsis which contains information indicating that the employee is working or exhibiting the capability of working, where the report is the sole basis for discontinuance;
4. wage records demonstrating employment of the employee during the period compensation was collected;
5. a job description of any work offered to the employee when accompanied by a medical report which contains a physician's opinion that the employee is capable of doing such work;
6. a brief memorandum or affidavit specifying the basis for the request to modify or terminate benefits.

(k) A complaint requesting recoupment pursuant to M.G.L. c. 152, 11D(3) shall be accompanied by a copy of the decision of an administrative judge or court of the Commonwealth indicating that an overpayment has been made and an affidavit bythe insurer attesting that weekly benefits are no longer being paid to the employee so that unilateral reduction cannot be implemented.

(l) A claim requesting reimbursement under M.G.L. c. 152, 37 and 37A shall be made on a form prescribed by the Department which shall be accompanied by both a certificate stating that it was served on the Office of Legal Counsel, and by a petition which sets forth and documents items which include, but are not limited to, the following:

1. employee's job description and duties; educational, military, and employment history; and, vocational training prior to the "subsequent impairment" (i.e. compensable personal injury for which petitioner seeks M.G.L. c. 152, 37 through 37A reimbursement; also known as "second injury");

2. evidence of employer's knowledge of employee's pre-existing physical impairment due to a previous accident, disease or congenital condition as evidenced by such documents as a job application, a pre-employment physical report, or by employer's affidavit attesting that employer knew of the impairment not later than 30 days after the date of employment, or (for injuries occurring prior to December 23, 1991) by medical records which existed prior to the date of the subsequent impairment;

3. evidence that a known pre-existing physical impairment was, or was likely to be, a hindrance or obstacle to employment (i.e. medical records evidencing permanent physical restrictions, documented job modifications or accommodations which employer made on behalf of employee);

4. all medical records pertaining to the subsequent impairment including attending physician reports, insurance medical examinations, and DIA impartial physician report;

5. from the compensation claim involving the second injury, copies of all DIA documents which substantiate the reimbursement which the petitioner seeks, such as:

a. Employee Claim Form (110)

b. First Report of Injury

c. Agreement(s) to Compensation

d. Conference Orders, Hearing Decisions and Lump Sum Agreement;

6. indemnity record for all reimbursable compensation paid after the 104^th week from the date of the onset of disability or death that clearly identify the claimant, the section under which compensation was paid, the dates for which payment was made, and the amount of weekly compensation;

7. medical bills paid for all related reimbursable medical treatment received by employee after the 104th week from the date of the onset of disability (computer printouts which clearly identify the claimant, the service providers, and the dates of service constitute satisfactory documentation); and

8. a description of the subsequent impairment which includes an authoritative medical statement as to how the subsequent impairment is substantially greater (by the combined effects of such impairment and subsequent personal injury) than the disability that would have resulted from the subsequent personal injury alone, or that the subsequent injury was caused by the pre-existing impairment, and, if death results from the subsequent injury, that the death would not have occurred except for such pre-existing physical impairment.

(m) All claims and complaints alleging M.G.L. c. 152, 8 and/or 14 must specify the individual subsections under M.G.L. c. 152, 8(1), 8(5), 14(1) or 14(2) or the claim or complaint shall be administratively withdrawn.

(n) Claims for penalties under M.G.L. c. 152, ڎ(5) shall be accompanied by an affidavit stating the penalty being claimed and the basis for the alleged claim.