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

(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.