Legal Memorandum: Doctrine of Primary Jurisdiction in MA

Issue: Under Massachusetts law, does the doctrine of ‘primary jurisdiction’ apply to an agreement by parties for the reimbursement of expenses under 37, Form 123 Agreements?

Unlike agreements between an injured employee and an insurer for the payment of benefits, the Form 123 Agreements do not involve the “payment of compensation,” but rather the “reimbursement of certain apportioned benefits pursuant to section thirty-seven.”  See M.G.L. c. 152, § 65(2)(c) TA s "M.G.L. c. 152, § 65" .  While not specifically defined in Chapter 152, the distinction between compensation payments and reimbursement payments is clear.  Throughout the chapter, a “payment of compensation” is generally made to an injured employee to compensate for a workplace injury.  See, e.g., M.G.L. c. 152, § 16 TA l "M.G.L. c. 152, § 16" s "M.G.L. c. 152, § 16" c 2  (“When in any case before the department it appears that compensation has been paid or when in any such case there appears of record a finding that the employee is entitled to compensation, no subsequent finding by a member or the reviewing board discontinuing compensation on the ground that the employee’s incapacity has ceased shall be considered final as a matter of fact or res adjudicata as a matter of law . . . .” (emphasis added)); M.G.L. c. 152, § 17 TA l "M.G.L. c. 152, § 17" s "M.G.L. c. 152, § 17" c 2  (“payment of compensation, when ordered, shall commence immediately, with the first payment to be received by the employee within fourteen days of the issuance of any such order or decision . . . .” (emphasis added)); M.G.L. c. 152, § 25C(1) TA l "M.G.L. c. 152, § 25C(1)" s "M.G.L. c. 152, § 25C(1)" c 2  (“Whenever the commissioner or his designee […]