Opinion
BOARD No. 045156-93
Filed: May 28, 1998
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine).
APPEARANCES
Steven I. Bergel, Esq. for the employee.
Joseph W. Murphy, Esq. for the insurer.
This is the employee's appeal from a decision of an administrative judge following a recommittal from the reviewing board. We affirm the judge's determination of the date on which to terminate weekly benefits, but reverse on his denial of an attorney's fee under § 13A (5).
The employee sustained a low back injury on July 5, 1993, for which the insurer accepted liability and commenced payment of weekly compensation under G.L.c. 152, § 34, for temporary, total incapacity. Thereafter, the insurer filed a complaint for discontinuance, which was denied after a § 10A conference. Following a hearing de novo on the insurer's appeal of the conference order, the administrative judge awarded § 34 benefits until October 27, 1995, the date of his decision, and further directed the insurer to pay the employee's counsel fees pursuant to § 13A(5). (Dec. I.)
General Laws c. 152, § 13A(5), as amended by St. 1991, c. 398, § 35, provides in pertinent part:
Whenever an insurer files a complaint or contests a claim for benefits and then . . . the employee prevails at [the] hearing the insurer shall pay a fee to the employee's attorney . . .
The insurer's appeal to the reviewing board after the first decision asserted that the judge erred in ordering that § 34 weekly compensation terminate on the date of decision, a date with no evidentiary significance. The insurer also argued that the judge erred in awarding attorney's fees because the employee did not "prevail" for purposes of § 13A(5). The reviewing board endorsed the insurer's arguments in Betty v. Olsten Health Care, 10 Mass. Workers' Comp. Rep. 623 (1996) (Betty I), and remanded the case to the judge for further findings on the extent of incapacity. The judge was instructed that if he again decided § 34 benefits should cease, he was to terminate compensation on a date grounded in the evidence. Betty I, supra at 624-625. In addition, the reviewing board reversed the fee ordered under § 13A(5), concluding that the employee did not prevail under that section because the employee's claims for knee and psychiatric injuries were denied and dismissed, benefits for the accepted back injury were discontinued and, although there was a general order for §§ 13 and 30 medical benefits, specific medical benefits were not in issue. Betty I, supra at 625.
452 Code Mass. Regs. § 1.19(4) provides in pertinent part:
In any proceeding before the Division of Dispute Resolution, the claimant shall be deemed to have prevailed, for the purposes of M.G.L.c. 152, § 13A(1) through (3), when compensation is ordered or is not discontinued at such proceeding. . .
As the former § 13A(3) is now § 13A(5), the regulation is applicable. See Connolly's Case, 41 Mass. App. Ct. 35, 37 n. 5 (1996). The statutory language connects the award of attorney's fees to the concept of "prevail." The language of 452 Code Mass. Regs. § 1.19(4) establishes that, except when an insurer is ordered to pay benefits or an employee defeats the insurer's effort to discontinue benefits, statutory attorney's fees are not owed. See Talbot v. Stanton Tool Manufacturing, Inc., 11 Mass. Workers' Comp. Rep. ___ (October 30, 1997).
On recommittal, the judge decided the case on the existing record and by reference incorporated his original hearing decision into his second decision. (Dec. II 159.) The judge terminated the employee's § 34 benefits on February 15, 1995, the date a § 11A medical examiner opined there was no further objective disability following his physical examination of that date. (Dec. II 160-162.) The judge observed that, in his opinion, this date was arbitrarily assigned by a bureaucratic process and thus was the equivalent of the adjudicatory process of filing a decision. (Dec. II 160-161.) Moreover, relying on the reviewing board's construction of the word "prevail" for purposes of § 13A(5) as set forth in Betty I, supra at 625, the judge denied an award of attorney's fees to employee's counsel. (Dec. II 162-163.)
The case is again before the reviewing board, this time on the employee's appeal. She makes two arguments: 1) the judge erred in terminating benefits on the date of the § 11A exam rather than on the date of decision as previously ordered and 2) the judge erred in failing to award attorney's fees under § 13A(5).
We have often stated that discontinuance of benefits must have evidentiary support. Sullivan v. Commercial Trailer Repair, 7 Mass. Workers' Comp. Rep. 8, 9 (1993). As a general rule, an administrative judge should avoid a purely procedural date not grounded in the evidence as a date to terminate benefits. Sanchez v. City of Boston, 11 Mass. Workers' Comp. Rep. 235, 236 (1997); compare Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995) (earliest date a discontinuance or modification order may apply is the filing date of the insurer's complaint). A designation of the filing date of the decision as a date of termination is arbitrary, as that date affords no basis for a change in medical or vocational incapacity status. Sullivan,supra at 9; see Monet v. Massachusetts Respiratory Hosp., 11 Mass. Workers' Comp. Rep. ___ (November 17, 1997). By comparison, the date on which the § 11A physician conducts an examination and forms an opinion that there is no further disability, indicating a change in physical condition, is a sufficient evidentiary foundation upon which to base the cessation of weekly benefits. SeeSullivan, supra at 9. Compare Miller v. Metropolitan Dist. Comm'n, 11 Mass. Workers' Comp. Rep. 355 (1997) (where a judge awards benefits prior to the § 11A exam in a case where there is no medical evidence to support it, the judge is required sua sponte to allow additional medical evidence because there is a "gap" period).
We think it significant that on appeal the employee asserts neither an error under § 11A nor that the impartial report is inadequate. Indeed, this is not a case where there is a gap period or any other deficiency in the § 11A report, where the allowance of additional medical evidence would serve a legitimate function under § 11A(2). See O'Brien's Case, 424 Mass. 16, 22 (1996). In the absence of any inadequacy in the medical report, the judge's denial of the motion for additional evidence was appropriate and not an abuse of his discretion. He properly concluded he had "no legal alternative." (Dec. II 162.) Accordingly, we affirm the decision of the administrative judge terminating benefits on February 15, 1995, the date of § 11A examination, as there was adequate support in the medical evidence for that determination.
The employee next argues that the judge erred in not awarding a § 13A(5) counsel fee to his attorney. We agree, although we do not fault the judge for not awarding an attorney's fee after remand because he followed the reviewing board panel mandate in Betty I. See Betty I, supra at 625. In the interval between the judge's first and second decisions, however, another reviewing board panel explicitly overruled Betty I. In Conroy v. Norwood Hospital, 11 Mass. Workers' Comp. Rep. (October 1, 1997), a majority of the reviewing board panel invoked Connolly's Case, 41 Mass. App. Ct. 35 (1996), and held that if an employee retains any of the compensation ordered at conference, after the insurer's appeal, he is entitled to an attorney's fee. Here, under the Conroy rule, the employee "prevailed" on a disputed issue at hearing because she retained compensation benefits up until the date of the § 11A exam. Despite this panel's disparate views on the decision inConroy, we defer to the other panel and the principles of stare decisis, and reverse the administrative judge's denial of the § 13A(5) attorney's fees.
Accordingly, we affirm the administrative judge's decision as to the date of weekly benefits termination. We reverse the denial of attorney's fees and order the payment of § 13A(5) counsel fees to the employee's attorney.
Although the issue is not raised on appeal, we deem it appropriate to point out that, as it appears the employee's psychiatric claim was not fully developed at hearing, it is open to the employee to bring a new claim for any work-related emotional impairment subsequent to February 15, 1995.
So ordered.
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Frederick E. Levine Administrative Law Judge
FILED: May 28, 1998
The true central problem in this appeal is the judge's clear error on what his options are under § 11A. Therefore, I dissent.
Although the judge found Melissa Betty's testimony on pain and limitations credible, and that she still suffered from an "authentic disability that is related to the work incident" (Dec. I 824, 825), he denied additional medical evidence and terminated her weekly compensation based on his notion that the § 11A process left him "no legal alternative." (Dec. II 162.) He lamented that "[b]ecause of the operation of section 11A" he was forced to adopt an arbitrarily created examination date to discontinue her benefits despite his belief that she continued to be incapacitated by sequelae of the work injury beyond that exam date. (Dec. II 160-161.) This is not what § 11A(2) requires.
As interpreted by the Supreme Judicial Court, § 11A(2) authorizes an administrative judge to take additional medical evidence "where this additional testimony would serve some legitimate function."O'Brien's Case, 424 Mass. 16, 22 (1996). The legitimate function of additional medical evidence here would allow the parties to present expert testimony concerning the work related medical disability the judge found she suffered from subsequent to the impartial examination. See Deleon v. Accutech Insulation Contract, 10 Mass. Workers' Comp. Rep. 713 (1996) (gap between § 11A exam and hearing).
Here, a motion for additional medical evidence was advanced, the judge seemed concerned about the need for it subsequent to the § 11A exam, and yet denied the motion. (Dec. I 818.) Moreover, he foreclosed additional medical testimony when this case was recommitted to him previously. (Dec. II 159.)
The reviewing board has just ruled that finding a § 11A report "is of no help" in addressing the medical issues, is a basis for finding the report inadequate. Laroche v. Revere Housing Authority, 12 Mass. Workers' Comp. Rep. ___ (April 30, 1998). The Supreme Judicial Court has said that "a decision by the administrative judge to foreclose further medical testimony where such testimony is necessary to present fairly the medical issues would represent grounds either for reversal or recommittal."O'Brien's Case, supra, at 22-23.) This is such a case.
I would recommit for the allowance of additional medical evidence because the judge's erroneous perception of the limits on allowable evidence has prevented the parties from fairly presenting the medical issues, and thus, there is a failure of due process as applied in this case. See O'Brien's Case, supra, at 23. I agree that a fee is due in this case, based on the rationale inConroy v. Norwood Hospital, 11 Mass. Workers' Comp. Rep. 487 (1997).
_____________________ Carolynn N. Fischel Administrative Law Judge
Filed: May 28, 1998