DIVISION OF INDUSTRIAL ACCIDENTS

M.G.L. pt. Part I, tit. Title II, ch. c. 23E

in effect

M.G.L. c. 23E, § 1 Director of industrial accidents; appointment; term; salary

c. 23E, § 1. Director of industrial accidents; appointment; term; salary Section 1. There shall be a department of industrial accidents, hereinafter referred to as the department under the supervision and control of a director of industrial accidents, hereinafter in this chapter and in chapter one hundred and fifty-two, called the director. The governor shall appoint the director to serve for a term coterminous with that of the governor. Upon the expiration of the term of office of the director, he may be reappointed by the governor. The position of director shall be classified in accordance with section forty-five of chapter thirty and the salary shall be determined in accordance with section forty-six C of said chapter thirty. The director shall devote his full time to the duties of his office and shall not engage in other employment or business activities during regular business hours.

M.G.L. c. 23E, § 2 Director executive and administrative head of department

c. 23E, § 2. Director executive and administrative head of department Section 2. The director shall be the executive and administrative head of the department. He shall have charge of the administration of the department and enforcement of all laws, rules and regulations which it is the duty of the department to administer and enforce. He shall have authority pursuant to the provisions of chapter thirty A to issue any regulation for the enforcement and administration of the provisions of this chapter and chapter one hundred and fifty-two. The director shall prepare an annual operating budget and other funding requirements and requests pursuant to said chapter one hundred and fifty-two to be submitted to the secretary of labor and workforce development.

M.G.L. c. 23E, § 3 Administration division; director; deputy director; dispute resolution division; director; deputy director; responsibilities

c. 23E, § 3. Administration division; director; deputy director; dispute resolution division; director; deputy director; responsibilities Section 3. (a) There shall be within the department a division of administration, under the supervision and control of a director of administration, and a division of dispute resolution, under the supervision and direction of a senior judge, each of whom shall be appointed by the commissioner. Within the division of administration there shall be a first deputy director of administration. Within the division of dispute resolution there shall be a deputy director of dispute resolution. (b) The division of administration shall be under the supervision and control of the director of administration, who shall be the executive administrative head of said division. The director shall direct and supervise the activities of all employees within such division. The division of administration shall contain the office of claims administration, the office of education and vocational rehabilitation, the office of insurance, the office of administration and data processing, and the office of safety. The division shall have the following responsibilities under chapter one hundred fifty-two: (1) receiving and maintaining any reports required to be filed with the department; (2) providing vocational rehabilitation services required of the department; (3) preparing an annual statistical report of departmental activities including available information regarding insurer practices, injury and litigation patterns and departmental productivity, and filing such report with the clerks of the house and senate of the general court, the advisory council and the commissioner of insurance and responding to other requests for data; (4) maintaining a toll-free information number for inquiries regarding workers' compensation; (5) preparing and distributing informational materials regarding workers' compensation and occupational health and safety; (6) establishing and supervising programs for data collection on workplace injuries and for the education and training of employees and employers in the recognition, avoidance and prevention of unsafe or unhealthful working conditions in employment and advising employees and employers on these issues; (7) investigating employer violations of mandatory workers' compensation coverage and enforcing stop work provisions; (8) investigating written allegations of questionable claims handling techniques or patterns of unreasonably controverting claims by insurers, employers or other entities handling workers' compensation claims and referring its findings to the commissioner of insurance and the party alleging such techniques or patterns; provided, however, that the department shall provide by regulation guidelines for what constitutes questionable claims handling techniques and patterns of unreasonably controverting claims; (9) licensing and oversight of self-insurers as set forth in section twenty-five B of chapter one hundred and fifty-two; (10) maintenance of departmental budgetary, personnel, data processing and other administrative services; (11) collection of assessments, fines and other payments payable to the Workers' Compensation Trust Fund and the Workers' Compensation Special Fund; (12) analyzing information that shall be required to be sent to the department from the department of unemployment assistance, and the department of career services, the department of revenue, the registry of motor vehicles, the department of welfare, the workers' compensation rating bureau of Massachusetts, the insurance fraud bureau, individual insurers, self-insurers, and self-insurance groups; (13) other duties as the director may require.

M.G.L. c. 23E, § 4 Industrial accident board; members; appointment; terms; review; salaries

c. 23E, § 4. Industrial accident board; members; appointment; terms; review; salaries Section 4. There shall be within the division of dispute resolution an industrial accident board, in this chapter and in chapter one hundred and fifty-two called the board, which shall consist of twenty-one members, who shall be administrative judges appointed for six year terms by the governor with the advice and consent of the council, not more than eleven of whom shall be from the same political party. The initial appointment of a member shall be for a term of 6 years; subsequent reappointment of a member shall be for a term of 6 years which shall commence on the date of expiration of the initial or subsequent term. The appointment or reappointment of a member shall be made by the governor with the advice and consent of the council. Nominees shall be submitted to the governor from a nominating panel under procedures to be established by the governor. Prior to the expiration of the term of office of a member, the conduct of said member shall be reviewed by such nominating panel, which shall recommend whether said member shall be retained in office. Such review shall include a report from the commissioner. Notwithstanding any general or special law to the contrary, an appointed member, who has not previously served on the industrial accident board, shall be reviewed for performance by the senior judge between the 21st and the 24th month of the member's initial term. The performance review shall be subject to criteria established by the senior judge. If the performance review supports continuation of the appointed term, that member shall continue to serve the remainder of the appointed term. If the performance review recommends against a continuation of the appointed term, the performance review shall be submitted to the governor for appropriate action pursuant to section 8. Notwithstanding any provision of chapter thirty to the contrary, the commissioner shall be placed in Job Group M–X, as set forth in section forty-six C of chapter thirty, and the members of the board shall be placed in Job Group M–IX, as set forth in said section forty-six C at not less than Step 7, of the management salary schedule, the first deputy director of administration and the deputy director of dispute resolution shall be placed in Job Group M–VII, as set out in said section forty-six C, at not less than Step 7. Members of the board shall devote their full time during ordinary business hours to the respective duties assigned them and shall not engage in outside employment or business activities during such hours.

M.G.L. c. 23E, § 5 Industrial accident reviewing board; members; appointment; terms; review; salaries

c. 23E, § 5. Industrial accident reviewing board; members; appointment; terms; review; salaries Section 5. There shall be within the division of dispute resolution an industrial accident reviewing board, in this chapter and in chapter one hundred and fifty-two called the reviewing board which shall consist of six members, not more than three of whom shall be a member of one political party. Any member appointed to the reviewing board shall be an attorney admitted to the Massachusetts bar or be a current or past member of the industrial accident board or the reviewing board at the time of such appointment. Members of the reviewing board shall be administrative law judges appointed by the governor with the advice and consent of the council, for six year terms. The initial appointment of all members shall be for a term of 6 years; subsequent reappointments of sitting members shall be for an additional term of 6 years which shall commence on the date of expiration of the initial or subsequent term. The appointment or reappointment of members shall be made by the governor with the advice and consent of the council. Nominees shall be submitted to the governor from a nominating panel under procedures to be established by the governor. Prior to the expiration of the term of office of a member, the conduct of said member shall be reviewed by such nominating panel, which shall recommend whether said member shall be retained in office. Such review shall include a report from the commissioner. Notwithstanding any general or special law to the contrary, a newly appointed member who has never previously served on the reviewing board, shall be reviewed for performance by the senior judge during his initial term between the twenty-first and the twenty-fourth month of the term. The performance review shall be subject to criteria established by the senior judge. If the performance review supports continuation of the term, said administrative law judge shall continue to serve the remainder of the appointed term. If the performance review recommends against a continuation of the appointed term, the performance review shall be submitted to the governor for appropriate action pursuant to section 8. Notwithstanding any provision of chapter thirty to the contrary, the members of the reviewing board shall be placed in Job Group M–X, as set forth in section forty-six C of said chapter thirty. Reviewing board members shall devote their full time during ordinary business hours to the duties of their office and shall not engage in any other employment or business activities during such hours.

M.G.L. c. 23E, § 6 Senior judges; powers and duties; selection

c. 23E, § 6. Senior judges; powers and duties; selection Section 6. The industrial accident board and the industrial accident reviewing board shall be under the supervision and administrative control of the senior judge. The senior judge shall direct and supervise the activities of all members of the board and the reviewing board. The commissioner shall assign such necessary support staff to the division as he deems necessary. The senior judge shall cause a statistical list to be maintained of all matters heard or conferred on by each board member along with a list of conference orders and decisions filed by each member and all lump sum settlements approved by the reviewing board and at the end of each month shall cause said list to be published forthwith and made available for inspection by the public. Every decision and order of any member of the board and every decision by the reviewing board shall be open to the public. Decisions of the reviewing board shall be indexed and published. Members of the industrial accident board and the industrial accident reviewing board shall be subject to the provisions of chapters two hundred and sixty-eight A and two hundred and sixty-eight B. There shall be within the department, a division of dispute resolution, under the supervision and direction of a senior judge, who shall be appointed by the commissioner. The senior judge shall be selected from among the current administrative judges or administrative law judges by the commissioner. The senior judge must possess the following qualifications: (i) no less than two years of experience as an administrative judge or administrative law judge at the industrial accident board; (ii) proven knowledge of chapter one hundred and fifty-two, its regulations and other relevant laws; (iii) demonstrable administrative and management ability; and (iv) superior writing skills as may be shown by hearing or review board decisions, law review articles or any other appropriate written materials. The term of any administrative judge or administrative law judge who is appointed to serve as the senior judge under this section shall be coterminous with the governor. The senior judge may be removed by the governor upon the recommendation of the commissioner. The senior judge may appoint, subject to the approval of the commissioner, such personnel as are necessary for the performance of the senior judge's duties. The senior judge shall be placed in job group M–X, step seven as set forth in section forty-six C of chapter thirty. There shall be within the division of dispute resolution a conciliation unit. Such unit shall attempt the informal resolution of disputes, review and approve agreements, and perform such other duties as the senior judge may require. The senior judge shall be responsible for the operation of the division of dispute resolution. The powers and duties of the senior judge shall include, but not be limited to, the following:— (i) the initial training of newly appointed administrative judges and administrative law judges as to their responsibilities and powers including, but not limited to, the conduct of conferences and hearings, the prompt, clear, and concise writing of orders and decisions and the management of claims to assist workers in their return to work; (ii) the establishment of an annual workers' compensation judicial training program to instruct all administrative judges or administrative law judges in matters related to their professional development; (iii) the establishment of criteria, in conjunction with the commissioner, upon which to perform an annual review of each administrative judge and administrative law judge; (iv) the fair allocation of all claims and complaints to ensure each administrative judge receives a balanced and equitable case load during the calendar year; (v) the establishment of criteria under which a claimant may claim a hardship and request a conference on the first available date; (vi) the training, supervision and review of conciliators, and the association, where feasible, of particular conciliators to particular judges for the purpose of fostering more effective conciliation of disputes. (vii) the senior judge shall accept motions for expedited conferences relating to fraudulent behavior, illegal discontinuance of compensation, catastrophic injuries, medical emergencies, or denials pursuant to section fifteen A of chapter one hundred and fifty-two. Such session shall be held on a weekly basis if necessary. The motions and the procedure at the sessions shall conform to requirements set forth by the senior judge. The motion sessions shall be presided over by an administrative law judge or conciliator selected by the senior judge. If the administrative law judge, administrative judge or conciliator grants the motion for an expedited conference, said conference shall be held within fourteen days. (viii) the development of a standard form for pre-conference memoranda to be prepared by the parties.

M.G.L. c. 23E, § 7 Recall of former board members

c. 23E, § 7. Recall of former board members Section 7. If the workload of the board so requires, the governor with the advice and consent of the council, may, upon request of the commissioner, recall any former member of the board to sit as a member in any conference or hearing conducted under the provisions of chapter one hundred and fifty-two. Such former member when recalled, shall be assigned to such proceedings as the commissioner shall determine, and when so recalled and assigned he shall have all the powers and duties of a member of the board. The period for which a former member may be recalled shall not exceed one year, but the governor may, upon the request of the commissioner and the advice and consent of the council, recall said member for successive one year periods. No former member of the board shall represent any person before the board during the period for which he has been recalled as a member or decide cases in which he had an interest or involvement during his absence from the board. A former member so recalled shall be paid by the commonwealth in addition to any pension or retirement allowance received by him, the amount by which the regular salary of a member of the board exceeds such pension or retirement allowance which he is entitled to receive for the period.

M.G.L. c. 23E, § 8 Removal of members of board or reviewing board

c. 23E, § 8. Removal of members of board or reviewing board Section 8. The commissioner and the senior judge shall have authority to initiate proceedings for the removal of a board or reviewing board member when the commissioner and the senior judge are of the opinion that such member has been guilty of misconduct, material neglect of duty, inability to perform the duties required of a member, or incompetence in the conduct of office. Upon recommendation of the commissioner and the senior judge, the governor shall commence an investigation of such member's record and practices, and shall require the commissioner and senior judge to provide any performance evaluations of such member made under the provisions of section nine along with any supporting documentation. Upon completion of his investigation, the governor may, with the advice and consent of the council, remove such member for misconduct, material neglect of duty, inability to perform the duties required of a member or incompetence in the conduct of his office. The senior judge, board members and reviewing board members in the performance of their official duties shall be subject to the Model Code of Judicial Conduct for State Administrative Law Judges as promulgated by the American Bar Association. A complaint alleging grounds for removal under this section or alleging a violation of the code of judicial conduct may be initiated by a person affected by the exercise of official duties by the member. The commissioner shall establish a procedure for the fair disposition of the complaint, and may recommend appropriate action by the governor with respect thereto. The members shall be provided with a written statement of the grounds for removal and a summary of the investigation by the governor. Removal procedures shall afford confidentiality, subject to considerations of due process and the provisions of section ten of chapter sixty-six. Any member so removed shall have the right to appeal his removal to the superior court department of the trial court.

M.G.L. c. 23E, § 9 Industrial accident nominating panel; members; review of applications for appointment to board or reviewing board; performance evaluations

c. 23E, § 9. Industrial accident nominating panel; members; review of applications for appointment to board or reviewing board; performance evaluations Section 9. There shall be an industrial accident nominating panel to consist of thirteen members. The panel shall include the governor's legal counsel, the secretary of labor and workforce development, the secretary of economic development, the director of the department and the senior judge, and eight members to be appointed by the governor, two of whom shall be representatives of business, two of whom shall be representatives of organized labor, one of whom shall be a health care provider, one of whom shall be an attorney who represents claimants in workers' compensation matters, one of whom shall be an attorney who represents employers or insurers in workers' compensation matters, and one of whom shall be an attorney who does not practice workers' compensation law. One of the representatives of business shall be the president of the Associated Industries of Massachusetts, or his designee, and one of the representatives of organized labor shall be the president of the Massachusetts AFL–CIO, or his designee. All members of the nominating panel shall serve at the pleasure of the governor. Prior to any submission of nominations for appointment or reappointment to the industrial accident board or industrial accident reviewing board pursuant to section four or section five, the nominating panel shall review applications for such nominations and consider the following factors: (1) skills in fact-finding; (2) basic understanding of human anatomy and physiology; and (3) a bachelor's degree or demonstrated writing ability as evidenced by four or more years in positions in which writing skills are a major job responsibility. Such review shall be made on the basis of the application, experience, education and training of the applicant, writing samples, interviews, and any other information the panel may require. When the application is for reappointment, the panel shall require, in addition to any other information, a performance evaluation prepared by the senior judge and commissioner for each year since the candidate's last appointment. The performance evaluation shall be a written report which contains the following information: (1) Average time for the disposition of cases before the applicant, and, where applicable, a comparison of such applicant's speed of disposition with the other board members; (2) three decisions written and selected by the applicant; (3) the total number of proceedings scheduled before the applicant and total number of orders and decisions filed; (4) where applicable, the total number of cases decided by such applicant heard by an appellate body, and the number of such cases which were remanded for further proceedings; (5) any decisions of an appellate body which specifically reference the candidate's judicial demeanor or temperament; (6) at the discretion of the commissioner, written complaints from attorneys received by the commissioner regarding the candidate's judicial demeanor or temperament; (7) evidence of any demonstrable bias against particular defendants, claimants or attorneys. In no instance shall a calculation of the number or percentage of orders or decisions made in favor of employees, insurers or employers be a part of any performance evaluation of a member of the board or reviewing board. Any information regarding a candidate compiled by the nominating panel shall be forwarded to the governor and to the workers' compensation advisory council. Said council may rate the candidate as highly qualified, qualified, or unqualified. If such candidate is appointed or reappointed by the governor the performance evaluation and any ratings by said council shall be forwarded to the executive council.

M.G.L. c. 23E, § 10 Office of legal counsel

c. 23E, § 10. Office of legal counsel Section 10. There shall be within the department an office of legal counsel under the direction of a general counsel who shall report to the commissioner. The office shall be responsible for the investigation, defense and claims handling for claims against the Workers' Compensation Trust Fund, and for any other duties the commissioner may assign.

M.G.L. c. 23E, § 11 Fraud investigations; right to request and receive information

c. 23E, § 11. Fraud investigations; right to request and receive information Section 11. For the purpose of investigating fraud and collecting data regarding workplace injuries, the department shall have the right to request and receive information from the department of revenue, the department of unemployment assistance, and the department of career services, the registry of motor vehicles, the department of welfare, the insurance fraud bureau of Massachusetts, the workers' compensation rating and inspection bureau, and individual insurers, self-insurers and self-insurance groups and shall forward information regarding fraudulent activities to these entities. Such information shall be provided within thirty days unless otherwise authorized by the commissioner. The division of administration shall document evidence of any fraudulent activity and promptly refer such documentation to the office of the attorney general.

M.G.L. c. 23E, § 14 Regional offices

c. 23E, § 14. Regional offices Section 14. The commissioner shall establish four permanent regional offices, and shall appoint at least one management level employee as supervisor of each such office, and such other officers, clerks, and assistants as are necessary for the discharge of duties in connection with such offices.

M.G.L. c. 23E, § 15 Workers' compensation advisory council; members; appointment; meetings; quorum

c. 23E, § 15. Workers' compensation advisory council; members; appointment; meetings; quorum Section 15. There is hereby established an advisory council on workers' compensation in this chapter and in chapter one hundred and fifty-two called the advisory council to be appointed by the governor. The voting membership of said council shall be composed of five members representing employers in the commonwealth, at least one of whom shall represent manufacturing classifications, at least one of whom shall represent small business, at least one of whom shall represent contracting classifications, and at least one of whom shall represent self-insurers, and five members representing employees, all of whom shall be members of a duly recognized and independent employee organization, council, or union, and at least one of whom shall be a disabled worker. At least one employer representative shall be from a list of nominees provided by Associated Industries of Massachusetts. At least one employee representative shall be from a list of nominees provided by the Massachusetts AFL–CIO. The governor shall also appoint one member representing the insurance industry, the workers' compensation claimants' bar, one member representing the commonwealth's medical providers, and one member representing vocational rehabilitation providers, none of whom shall be voting members. The secretary of labor and workforce development and the secretary of economic development shall be ex officio, nonvoting members. Any person appointed to fill a vacancy occurring prior to the expiration of the term of his predecessor shall be appointed for the unexpired portion of such term. The chairman and the vice-chairman of such advisory council, one of whom shall be an employee representative and one of whom shall be an employer representative, shall be appointed from among voting members by the governor for two year terms. Such appointees shall not succeed themselves as chairman or vice-chairman. No member of said advisory council shall be subject to chapter thirty-one. Members shall receive their traveling and other necessary expenses incurred in the performance of their duties. Such expenses shall be paid from the special fund established in section sixty-five of chapter one hundred and fifty-two. Meetings of said advisory council shall be called by the chairman or upon petition by a majority of voting members. Such meetings shall be subject to the provisions of section eleven A1/2 of chapter thirty A. Said advisory council shall take no action pursuant to its authority under this chapter or said chapter one hundred and fifty-two unless a quorum of its voting members are present. The presence of seven voting members of the advisory council, at least two of whom shall be representatives of employees, shall constitute a quorum. No action shall be taken by the advisory council without the affirmative vote of at least seven members.

M.G.L. c. 23E, § 16 Advisory council personnel; expenses

c. 23E, § 16. Advisory council personnel; expenses Section 16. The advisory council shall appoint such personnel as are necessary for the proper discharge of its duties, subject to the approval of the secretary of labor and workforce development. The staff of the advisory council shall be funded from monies collected for the special revenue fund in accordance with the provisions of section sixty-five of said chapter one hundred and fifty-two. The advisory council may expend for personnel and office expenses funds appropriated to the department for that purpose.

M.G.L. c. 23E, § 17 Powers and duties of advisory council

c. 23E, § 17. Powers and duties of advisory council Section 17. The advisory council shall monitor, recommend, give testimony, and report on all aspects of the workers' compensation system, except the adjudication of particular claims or complaints. Its powers include the issuance of reports, recommendations for legislation, policies and programs, the conducting of research, the collecting of data from public and private sources, and powers granted under the provisions of by chapter one hundred and fifty-two. The advisory council shall report at least annually in writing by the last day of the fiscal year of the commonwealth to the secretary of labor and workforce development on the state of the workers' compensation system, and shall cause a copy of such report to be filed with the clerks of the house and senate of the general court who shall send copies of such report to the joint committee on commerce and labor and the house and senate committees on ways and means. The report shall include an evaluation of the operations of the department along with recommendations for improving the workers' compensation system. Said advisory council shall also review the annual operating budget of the department, as prepared by the commissioner and as submitted to the secretary of labor and workforce development. Upon the affirmative vote of at least seven voting members, the advisory council may submit its own recommendation for the total operating budget to the secretary of labor and workforce development. The advisory council shall make an investigation and study of the costs and benefits associated with the institution of competitive rating among workers' compensation insurance carriers. Such study shall consider the effect of open competition on premiums within the various classes of employers and within different geographical regions of the commonwealth and include recommendations concerning the advisability of adopting the practice of competitive rating within test classes or regions for a specific period of time. The council shall also make an investigation and study of the use of credits against insurance premiums and against assessments levied pursuant to section sixty-five of chapter one hundred and fifty-two that encourage rehabilitation and the rehiring of injured workers, and that provide safe workplaces. The council shall also make a study of the practicability of instituting a system by which parties to a dispute under said chapter one hundred and fifty-two may schedule proceedings before the industrial accident board by the use of a ''mark up'', so-called, or similar system. The advisory council shall also make a study of occupational diseases and their relationship to the workers' compensation system. No later than September first, nineteen hundred and ninety-three the advisory council shall conduct a study to evaluate the advantages and disadvantages of adopting an employee's hours worked as a methodology for establishing workers' compensation insurance premiums and conduct a study of the economic impact of changes to the wage replacement rates for partial and temporary total benefits on workers, employers, and insurers. The advisory council shall also make a continuous investigation and study of worker compensation issues involving public employees, including, but not limited to, the circumstances of public employees not subject to the workers compensation law, and problems resulting from the claims processing time periods for public employees. The advisory council may expend, for the legal, actuarial, research, clerical, and other expenses involved in the completion of such investigations and studies, such sums as may be appropriated therefor. The costs of such investigations studies shall be paid from the special fund created under said section sixty-five of said chapter one hundred and fifty-two. Said council shall file the results of its investigations and studies, and its recommendations, if any, together with any drafts of legislation necessary to carry its recommendations into effect with the governor and with the clerks of the house and senate of the general court within eighteen months of its first meeting.

Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleII/Chapter23EFetched: 10/20/2026