Voluntary Compensation And Employers Liability Coverage .

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September 18, 2006CIRCULAR LETTER NO. 2030To All Members and Subscribers of the Bureau:VOLUNTARY COMPENSATION AND EMPLOYERS LIABILITY COVERAGEENDORSEMENT – WC 00 03 11AThe attached memorandum is being provided to offer guidance on the useof the Voluntary Compensation and Employers Liability Coverage Endorsement(WC 00 03 11A) in Massachusetts.The Bureau is issuing the attached memorandum in response to requestsfor guidance from both the carrier and producer communities.Ellen F. Keefe, CPCUGeneral CounselAttachmentTHE WORKERS’ COMPENSATION RATING & INSPECTION BUREAU OF MASSACHUSETTS101 ARCH STREET·5TH FLOOR, BOSTON, MASSACHUSETTS 02110-1103(617) 439-9030, FAX (617) 439-6055, www.wcribma.org

Voluntary Compensation and Employers Liability Coverage EndorsementNCCI Form WC 00 03 11AThe Massachusetts Workers’ Compensation Law is set forth in Chapter 152 of the Massachusetts GeneralLaws. Section 25A of Chapter 152 requires employers to promote the health, safety and welfare of theiremployees by providing the compensation provided for by Chapter 152 for their employees (“workers’compensation insurance”).The purpose of the Voluntary Compensation and Employers Liability Coverage Endorsement(“Endorsement”) is to provide the equivalent of workers’ compensation insurance coverage foremployees for whom workers’ compensation insurance coverage is not required by Massachusetts law.The Bureau has held that the Endorsement cannot be used to provide workers’ compensation insurance orvoluntary compensation insurance for volunteers because volunteers are not employees as defined underChapter 152. 1What type of coverage is provided by the Endorsement?The Endorsement provides voluntary compensation insurance, which is distinct from workers’compensation insurance. The Massachusetts Workers’ Compensation and Employers Liability InsuranceManual, (“MA Manual”), which is approved by the Commissioner of Insurance, provides that theEndorsement can be used to provide employees with voluntary compensation coverage, but not workers’compensation coverage.2Rule II. D. of the MA Manual describes voluntary compensation insurance as follows: Voluntarycompensation insurance does not provide workers’ compensation coverage and is not available for1Chapter 152, section 1 defines an employee, in pertinent part, as every person in the service of another under acontract of hire, express or implied, oral or written. Massachusetts case law has generally held that one cannot bean employee without a contract, holding that unless there is a contract of hire, express, or implied, actual control ofthe person’s work will not establish the relation of employer and employee. In addition, a recent Supreme JudicialCourt (SJC) decision held that a Massachusetts sexual harassment statute does not apply to volunteers. That decisionincludes a statement by the SJC that “ the workers’ compensation statute does not apply to volunteers ” See,Lowery v. Klemm, 446 Mass 572, 580 (2006).If a person makes a claim for workers’ compensation benefits, the determination as to whether that person is anemployee or a volunteer is a question of fact that will be decided by the Department of Industrial Accidents or theCourt.2The Endorsement, which is published by the National Council on Compensation Insurance, Inc. (“NCCI”), hasbeen approved by the Division of Insurance (“DOI”) for use in Massachusetts. NCCI’s Basic Manual User’s Guidedefines voluntary compensation as insurance that provides coverage for workers for whom workers’ compensationcoverage is not required by law Voluntary Compensation Insurance enables the employer to offer the equivalentof workers’ compensation and employers’ liability coverage for these types of employment. It is permitted forvolunteers only where allowed by state law. In Massachusetts, there is no law that specifically allows such coveragefor volunteers.THE WORKERS’ COMPENSATION RATING & INSPECTION BUREAU OF MASSACHUSETTS101 ARCH STREET·5TH FLOOR, BOSTON, MASSACHUSETTS 02110-1103(617) 439-9030, FAX (617) 439-6055, www.wcribma.org

employments subject to M.G.L. Chapter 152, as amended. This insurance affords the benefits of M.G.L.Chapter 152, as amended, as if the affected employees were subject to that law, even though the law doesnot require payment of benefits to such employees. The MA Manual also states that voluntarycompensation insurance shall not provide compensation, medical or other benefits in excess of thestatutory requirements in the M.G.L. Chapter 152, as amended.The MA Manual definition is consistent with the plain language of both the Workers’ Compensation andEmployers Liability Insurance Policy (“Policy”) and the Endorsement. The Policy states: We will paypromptly when due the benefits required of you by the workers compensation law. In contrast, theEndorsement states: we will pay an amount equal to the benefits that would be required of you if youwere subject to the workers’ compensation law.Who is covered under the Endorsement?The Endorsement provides voluntary compensation insurance for employees for whom workers’compensation insurance coverage is not required by law.Under the Massachusetts statute, the types of employees for whom workers’ compensation insurance isnot required by law include certain masters and seamen, certain salespersons, certain taxicab operators,and a person whose employment is not in the usual course of the trade, business, profession or occupationof his employer (“exempt employees”).3Use of the Endorsement in MassachusettsThe Endorsement may be used only to provide voluntary compensation insurance for those employees forwhom workers’ compensation insurance coverage is not required by law. 4The Endorsement should not be used to provide coverage for volunteers because the Endorsementapplies only to employees.August 20063G.L. c. 152 section 1(4) provides in pertinent part: “Employee”, every person in the service of another under anycontract of hire , express or implied , oral or written, excepting (a) masters of and seaman on vessels engaged ininterstate or foreign commerce, (b) persons employed to participate in organized professional athletics, while soemployed if their contracts of hire provide for the payment of wages during the period of any disability resultingfrom such employment, (c) a salesperson affiliated with a real estate broker pursuant to an agreement whichspecifically provides compensation only in the form of commissions earned from the sale or rental of realproperty,(d) a salesperson who is a direct seller of consumer products on a buy-sell or deposit-commission basisother than in a retail establishment , all of whose remuneration is directly related to sales rather than amount oftime worked and whose services are performed pursuant to a written contract providing that the direct seller willnot be treated as an employee for Federal tax purposes, (e) a person who operates a taxicab company pursuant toan independent contract which specifically provides for a rental fee or other payment to the owner of such taxicabvehicle which is in no way related to the taxicab fares collected by such person; and provided, further, that suchperson is not treated as an employee for Federal tax purposes,(f) persons employed by an employer engaged ininterstate or foreign commerce but only so far as the laws of the United States provide for compensation or liabilityfor their injury or death, and (g) a person whose employment is not in the usual course of the trade, business,profession or occupation of his employer, but not excepting a person conclusively presumed to be an employeeunder section twenty-six.4Voluntary compensation coverage for exempt employees would not be available, however, in the Assigned RiskPool (“Pool”). In its role as Pool Administrator, the Bureau holds that Pool policies do not provide coverage beyondwhat is required under the statute. In accordance with MA Manual Rule XIII, the Pool does permit use of theEndorsement

Sep 18, 2006 · Endorsement can be used to provide employees with voluntary compensation coverage, but not workers’ compensation coverage.2 Rule II. D. of the MA Manual describes voluntary compensation insurance as follows: Voluntary compensation insurance does not provide workers’ compensation coverage and is not available forFile Size: 272KB

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