As the coronavirus pandemic drags on and cases are again on the rise in Massachusetts, the Department of Industrial Accidents (“DIA”) has adapted its procedures over the past several months to better support the workers’ compensation litigation process in the “new normal” environment. Initially, hearings had been suspended for several months, leaving litigants in a sort of limbo after conference proceedings. Fortunately, over the last several weeks the DIA has enacted a series of new procedures. The new procedures, as outlined below, enable the litigation process to proceed and the parties to participate either remotely, or in a socially distanced in-person manner.
CONCILIATIONS AND CONFERENCES
Conciliations are now taking place through the VirtualQ Meeting System. This virtual, web-based system is accessible through the DIA’s case management system and allows parties to video conference with conciliators and administrative judges. The link to each proceeding is published the afternoon prior to the event and allows the parties to virtually participate in proceedings. Claimants are now required to appear at conferences virtually, whereas previously there had been minimal virtual claimant participation at the conference level. More information about the VirtualQ Meeting System can be found here.
Parties are now required to participate in a mandatory pre-hearing conference with the administrative judge presiding over the hearing. Within two weeks of receiving a hearing notice, the parties must schedule a pre-hearing conference. If they fail to do so, the judge is given the discretion to reschedule the hearing. At the pre-hearing conference, the parties are required to submit a joint pre-hearing memorandum outlining the status of negotiations, respective claims and defenses, stipulations, and all motions.
As of September 28, 2020, the DIA has resumed in-person hearings on a limited basis. The DIA is limiting the number of courtrooms opened per day in each of its district offices and limiting the number of hearings scheduled each day. Testimony via virtual platform may be allowed for parties unable to attend in person. There are procedures in place for contact tracing, and limits to the maximum capacity allowed in both courtrooms and public spaces.
In response to both the DIA staff, as well as attorneys and claims adjusters largely working remotely to protect themselves during the pandemic, effective May 23, 2020, the DIA has required that pleading forms be filed online via the DIA’s CMS Portal. The following forms, which could previously be proceeded via paper, now must be submitted online:
- Form 103 Insurer’s Notification of Payment
- Form 104 Insurer’s Notification of Denial
- Form 106 Insurer’s Notification of Modification/Termination
- Form 107 Insurer’s Notification of Modification/Termination/Resumption of Weekly Compensation During Pay W/O Prejudice Period
- Form 108 Insurer’s Request for Discontinuance/Modification
- Form 110 Employee’s Claim
- Form 114 Attorney's Appearance of Counsel
- 115 Third Party Claim/Lien
- Form 116 Request for Lump Sum Conference
To accomplish online filing, a DIA online account must be created. More information about how to create an online account to enable online filing and access to case information can be found here.
The DIA has continued its free mediation program throughout the pandemic. An administrative judge who is not assigned to preside over the hearing will serve as a mediator over Zoom, or a similar video conferencing service. Ideally, the video conferencing service used will have break-out rooms to enable both parties to engage in private conversations with the mediator. Given the significant backlog of hearings resulting from the suspension of hearings for seven months, this service provides a particularly useful alternative to attempt to resolve disputed claims. The hearing judge or conciliator can assist parties with setting up mediation with participating judges.
Lump-sum hearings are now proceeding exclusively by e-mail. The parties execute lump sum papers as they did prior to the pandemic, but now with the addition of a Uniform Lump Sum Settlement Employee Affidavit. The affidavit essentially recites the colloquy which administrative judges would previously present to the claimant at the time of the lump sum settlement conference. The claimant attests that they understand the settlement amount and terms, consequences of settlement with or without liability, that the decision to settle is made without undue influence, coercion or duress. The Uniform Lump Sum Settlement Employee Affidavit can be found here.