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Fleming v. National Union Fire Insurance Co.11/23/2005
elated or even overlapping regulatory scheme that covers the transaction. Rather, a defendant must show that such scheme affirmatively permits the practice which is alleged to be unfair or deceptive" (emphasis in original). Bierig v. Everett Sq. Plaza Assocs., supra at 367 n.14, quoting Greaney, Chapter 93A Rights and Remedies § 6-4 (1992). See Cablevision of Boston, Inc. v. Public Improvement Comm'n of the City of Boston, 38 F. Supp. 2d 46, 61 (D. Mass.), aff'd, 184 F.3d 88 (1st Cir. 1999). The unfair and deceptive practices specifically alleged by the plaintiffs in their complaint are the defendants' computation of "average weekly wages" without the inclusion of the value of certain fringe benefits, and the defendants' misrepresentation of the amount of workers' compensation benefits to which the plaintiffs were entitled. Neither the applicable statutes, nor decisions by the reviewing board of the department, suggest that the defendants' alleged conduct was otherwise permitted by the workers' compensation scheme. See G. L. c. 152, § 1 (1); G. L. c. 149, §§ 26, 27. See also Kelly v. Modern Cont., 17 Mass. Workers' Comp. Rep. 172, 175 (2003); McCarty v. Wilkinson & Co., 11 Mass. Workers' Comp. Rep. 285, 289 (1997); Lyons v. Fontaine Bros., 4 Mass. Workers' Comp. Rep. 398, 399 (1990); Machado v. Joseph B. Fay Co., 3 Mass. Workers' Comp. Rep. 38, 39-40 (1989).
Judgment affirmed.
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