Opinion
BOARD No. 0971493
Filed: October 1, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Michael J. Powell, Jr., Esq., for the employee.
William Murphy, Esq., for the self-insurer at hearing.
Paul M. Moretti, Esq., for the self-insurer on brief.
The appeal poses the question: when a decision allows an insurer to discontinue benefits, has the employee "prevailed" under the attorney fee provisions of G.L.c. 152, § 13A(5)?
The self-insurer appeals from a decision allowing its complaint to discontinue compensation but awarding an attorney's fee of $3,912.35. We hold that the allowance of discontinuance does not in and of itself establish that no fee is due. However, we recommit for further findings because they do not adequately establish the parameters of the disputed period. Thus, we are unable to respond to the inquiry of whether a fee is due on the facts of this case. G.L.c. 152, § 11C. See Praetz v. Factory Mut. Eng'g. Research, 7 Mass. Workers' Comp. Rep. 45, 46-47 (1993).
Mary Conroy was employed as a nurse's aide at Norwood Hospital since 1989. (Dec. 4.) On March 12, 1993 she injured her back when a wheel on the heavy bed she was moving caught in the gap of an elevator opening. (Dec. 5.)
The self-insurer initially accepted her claim for compensation, paying G.L.c. 152, § 34 temporary total benefits. Id. Thereafter the self-insurer filed a December 12, 1994 complaint for discontinuance or modification. Following a § 10A conference, the discontinuance request was denied. (Dec. 2.) The self-insurer appealed to a hearing de novo. At the hearing the employee claimed "ongoing" § 34 benefits followed by § 34A benefits. (Employee's Issues statement.) The issues in controversy were causal relationship, the extent of incapacity and entitlement to § 30 medical benefits. Id.
In his decision, the judge adopted the opinion of the § 11A physician who, after examining the employee on May 25, 1995, reported that there was no continuing medical disability as a result of the March, 1993 work incident. (Dec. 6; Statutory Exhibit, 4.) Based on this subsidiary finding, weekly compensation was discontinued as of the date of the impartial examination. The decision lacks any findings about the nature and extent of the employee's incapacity and its causal connection to the injury prior to this date. Nevertheless, the employee's attorney was awarded a fee. (Dec. 10.)
General Laws c. 152, § 11A gives an impartial medical examiner's report the effect of "prima facie evidence with regard to the medical issues contained therein," and expressly prohibits the introduction of other material medical evidence to meet it unless the judge finds the additional medical testimony is required due to the complexity of the medical issues involved or the inadequacy of the report. G.L.c. 152, § 11A (as amended by St. 1991 c. 398, § 30).
Neither party sought to depose the impartial medical examiner.
The self-insurer contends that the award of an attorney's fee was error. On the present findings, we can neither agree nor disagree.
In order to receive an attorney's fee under G.L.c. 152, § 13A(5), the employee must prevail on some disputed issue at hearing, either by gaining or not losing some degree of benefits within the disputed time frame. See Gonzalez's Case, 41 Mass. App. Ct. 39, 42 (1996) (attorney's fee denied where employee only won liability because "the most significant aspect of a claim [under the Act] is the payment of compensation.")
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 . . . .
Ordinarily, in the context of an original liability claim, the disputed period begins from the date of injury or the last day of work. By contrast when an insurer seeks to discontinue, the disputed period begins no earlier than the filing date of the complaint, as said filing signifies its resistance to each ensuing payment. See Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995) (if medical evidence persuades the judge that medical disability ceased prior to the date the insurer filed its complaint to discontinue, the decision to discontinue may go back no further than the date the complaint was filed). Certainly insurers can, and many do, decide at any stage of the dispute process to stipulate to an abbreviated contested time frame or they may desist entirely. See Welch v. A.B.T. Systems, 9 Mass. Workers' Comp. Rep. 407, 410 (1995).
However the disputed period is defined by the parties, the employee has the burden of proving entitlement to compensation throughout. See, Quigley v. Raytheon Co., 10 Mass. Workers' Comp. Rep. 291, 293 (1996), citing Ginley's Case, 244 Mass. 346, 348 (1993). The findings here are deficient because they do not set out the time frame in dispute and whether there was causally related incapacity during that period. This issue must be addressed on recommittal as entitlement to counsel fees is dependent on its determination.
Connolly's Case, 41 Mass. App. Ct. 35 (1996), most recently addressed the concept of a "prevailing" party for purposes of a fee award. In Connolly, the matter commenced on an employee's claim and an insurer's contest of liability. The temporary conference order awarded payment of a closed period of weekly benefits. Both parties appealed. After a de novo hearing, the employee received the identical closed period of benefits already awarded at conference, and was denied attorney's fees.
On appeal of the fee issue, the court held that an employee who successfully defended nothing more than the benefits awarded in a conference order, which the insurer appealed to a hearing de novo, was entitled to an attorney's fee under § 13A(5). The court reasoned:
Even though the employer challenged the employee's claims of disability at the de novo hearing, the evidentiary burden was on the employee with respect to all of his claims. [Citations omitted.] Thus, all the benefits granted in the conference order were in jeopardy. [Footnote omitted.] Given that the employer appealed from the conference order and the judge entered a de novo finding of total temporary disability, the employee prevailed within the meaning of § 13A(5) since, in the terms of the interpretive regulation, "compensation [was] ordered" in the sense that the previously ordered payments were confirmed. Had the administrative Judge responding to the employer's appeal in any way reduced the temporary disability payments awarded by the conference order, the employee would have been exposed to a recoupment claim by the employer for the recovery of overpayments pursuant to § 11D(3).
Id. at 37 (emphasis added). General Laws c. 152, § 11D(3), was inserted by St. 1991, c. 398, § 32, and provides in pertinent part:
An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits by no more than thirty percent per week of any remaining compensation owed the employee.
. . .
Recoupment provisions were first expressly specified in chapter 152 to assure prompt payment of compensation on temporary orders as part of the 1972 inception of the § 7 conference proceeding. Prior to that, there had only been hearings. With the invention of conferences and their enforceable temporary orders of payment, came the concomitant right of reimbursement if after hearing, those orders had caused payments not due. See L. Locke, Workmen's Compensation § 482, at 665 (2d ed. 1981).
Massachusetts General Laws c. 152, § 7 in pertinent part at that time read:
If the insurer and the injured employee . . . disagree as to the continuance of any weekly payments . . . the division, . . . shall . . . assign the case for a conference by a member . . . . Any party aggrieved by an order . . . may . . . request . . . a hearing . . . . Pending a decision rendered after such hearing, compensation shall be paid, modified or discontinued in accordance with the order filed under this section. Such an order shall for all purposes be enforceable . . . until a decision has been rendered after such hearing. If, . . ., a decision is rendered that weekly payments made under the original order were not due, the state treasurer shall reimburse the insurer and the employee shall reimburse the state treasurer for the amounts paid the insurer.
St. 1971, c. 974, effective January 30, 1972. St. 1972, c. 742, § 1, effective October 15, 1972, substituted the present perfecting text.
The interjection of the § 7 conference made it necessary to distinguish between conference and hearing proceedings. In 1988, 452 Code Mass. Regs. 1.10 (1) and 1.11 (5) made that distinction clear. Conferences are "informal" and "not . . . subject to the rules of evidence," while hearings are evidentiary with decisions "based solely on the evidence introduced at hearing." Id. In short, conference and hearing proceedings are "separate and distinct." Karamanos v. J.K. Luncheonette, 5 Mass. Workers' Comp. Rep. 405, 407 (1991). The hearing is de novo "where issues are raised anew." Id.
With the lines of demarcation between the informal conference and the de novo evidentiary hearing clearly drawn, a long line of cases have since held that findings commencing, modifying or terminating benefits in hearing decisions must be "anchored in the evidence." See e.g. Markis v. Jolly Jorge's Inc., 4 Mass. Workers' Comp. Rep. 360, 362 (1990); Leveille v. A.T. T. Technologies Inc., 4 Mass. Workers' Comp. Rep. 177, 178 (1990); Palardy v. Com. of Mass., 6 Mass. Workers' Comp. Rep. 165, 166 (1992); George v. Chelsea Hous. Auth., 10 Mass. Workers' Comp. Rep. 22, 27 (1996). Thus, it is not only the conference based temporary order of payment, but also the positions taken by the parties at the de novo hearing itself, which require the disputed period to be delineated. What an employee stands to win or lose in the hearing is the touchstone of whether the employee has "prevailed" for purposes of a fee award under § 13A. See L. Locke, Workmen's Compensation § 7.18 at 151 (Nason Wall Supp. 1995). This position is consistent with our adjudicatory rules, which we read as prohibiting a fee award when the discontinuance granted affords no benefits during the disputed period. See 452 Code Mass. Regs. 1.19 (4).
452 Code Mass. Regs. 1.19 (4) reads 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)-(3), when compensation is ordered or is not discontinued at such proceeding. . . .
As former § 13A(3) is now 13A(5), the regulation still is intended to apply.
A partial success by the employee at hearing will support an award of a counsel fee. See Connolly's Case, supra at 37. Such an outcome corresponds with the "primary goal of any provision on attorneys' fees in workers' compensation legislation, [which] is to ensure adequate representation of the injured worker or his dependents". Locke, Workmen's Compensation § 12.1 at 333 (Nason Wall Supp. 1995) This is especially so because in the misfortune wrought by personal injury the employee may rightfully "be presumed to be somewhat needy. He is pitted against the insurer, who from the nature of its business has every facility for presenting its contentions . . . ." Ahmed's Case, 278 Mass. 180, 187 (1932).
Following the court's reasoning in Connolly's Case, supra, we overrule all prior reviewing board precedent contrary to our holding today. See Lucas v. Safelite Auto Glass, 5 Mass. Workers' Comp. Rep. 354 (1991); Rawson v. Teamster Local 379, 7 Mass. Workers' Comp. Rep. 196 (1993); Pagnani v. Demoulas/Marketbaskets, 9 Mass. Workers' Comp. Rep. 4 (1995); Betty v. Olsten Health Care, 10 Mass. Workers' Comp. Rep. 623, 625 (1996); Bradford v. Omni Parker House, 10 Mass. Workers' Comp. Rep. 653 (1996). Each fee case listed from Lucas onward has relied on an interpretation of 452 Code Mass. Regs. 1.19 (4), which is far narrower than what the statute itself permits. Instead, we hold that if an employee retains any of the compensation ordered, she is entitled to a fee.
Unfortunately, the decision does not identify what the period in dispute was and whether the employee actually retained any benefits that were disputed. As such, we cannot determine whether the legal requirements of § 13A(6) have been met.
We, therefore, deem it appropriate to recommit this case for further findings consistent herewith.
So ordered.
________________________ Susan Maze Rothstein Administrative Law Judge
________________________ Suzanne E.K. Smith Administrative Law Judge
In the context of a complaint for modification or discontinuance of weekly benefits an insurer must pay a fee to employee counsel only if the employee prevails at the hearing. § 13A(5). Did Ms. Conroy somehow prevail when the hearing decision which was filed on March 28, 1996 discontinued her weekly benefits retroactive to May 25, 1995? I do not believe so.
One of our adjudicatory rules, namely 452 CMR 1.19 (4), bears directly on the question. It states 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)-(3), when compensation is ordered or is not discontinued at such proceeding. . . .
As former § 13A(3) is now 13A(5), the regulation still is intended to apply to appeals from conference orders.
The self-insurer argues that the employee did not prevail at the hearing because the hearing judge authorized the complete discontinuance of benefits. Moreover since the decision placed the employee in a worse position than she was in after the conference order, applying the rationale of Connolly's Case, 41 Mass. App. Ct. 35, 37-38 (1995), the fee award was error says the insurer.
In her brief the employee also argues Connolly but in support of the award of a legal fee! In Connolly a claim was filed seeking weekly compensation and medical benefits. The conference order directed payment of weekly benefits from April 19, 1991 to July 2, 1991, medical benefits and counsel fees. Cross appeals were taken and at the hearing the insurer denied that the employee sustained an industrial injury and questioned the extent of incapacity. The decision fixed the same closed period of weekly compensation as had the conference order and an attorney's fee was not awarded. Connolly appealed the failure to award a fee and the Appeals Court reversed and remanded the case here for an order directing payment of the statutory § 13A(5) attorney's fee. Id. at 38.
Conroy argues that the insurer sought the discontinuance of her benefits as of March 14, 1995, the conference date, but after a full hearing those benefits were not terminated until May 25, 1995. She contends that this additional ten weeks of weekly benefits places her within the "prevailing party" formulation of one who succeeds on any significant litigation issue, achieving "some of the benefit sought in controversy". Nadeau v. Helgemoe, 581 F.2d 275, 278 (1978); Connolly's Case, supra. I disagree.
In my experience, insurers never ask for a specific date. From my review of the record, neither did the insurer here. That may change in the future.
Connolly is distinguishable from the case before us. In Connolly the very occurrence of an industrial injury was disputed. The self-insurer in our case accepted the claim. A complaint to terminate or modify is different from an original liability claim. An employee initiates an original liability claim, whereas an insurer triggers a complaint to terminate or modify. On an original liability claim an administrative judge, within seven days of conference, must file "a written order requiring or denying that weekly compensation or other benefits be paid . . . ." Section 10A(2)(a). Where the issue is an insurer's complaint to terminate or modify, the judge within seven days must file "a written order modifying, terminating, or denying modification or termination of weekly compensation or other benefits." Section 10A(2)(b). While the burden of proof in a complaint to terminate or modify remains with the employee, the moving party is the insurer. Contrary to the employee's argument, the judge here did not order ten additional weeks of benefits at the de novo hearing. He simply ordered discontinuance of benefits on a date which comported with competent record evidence.
The different nature of these conference orders is important. In Connolly the court pointed out that if the hearing decision in any way reduced the weekly disability payments awarded by the conference order, the employee would have been exposed to recoupment under § 11D(3). Arguably there is no recoupment in a discontinuance proceeding because the express language of § 11D(3) gives a right to recoupment only to "An insurer that has paid compensation pursuant to a conference order, . . ." Obviously there was no payment to Ms. Conroy pursuant to a conference order. Her claim was accepted.
The self-insurer did not specify the conference date for termination or modification for good reason. In these days where the norm for resolving medical disputes is an impartial medical exam under § 11A, a § 13A fee would be due in virtually all complaints to modify or discontinue. Weekly benefits are rarely terminated or modified retroactive to the filing date of the complaint or the date of the conference, because most often the § 11A examiner will offer his opinion based on findings on the exam date. To hold that a fee is due unless the termination is retroactive to either the filing date of the complaint or the conference date will require payment of a fee in virtually every discontinuance hearing.
Finally 452 CMR 1.19 (4), unequivocally forecloses the award of a fee when weekly benefits are discontinued. In doing so, the regulation does not fix time constraints for discontinuance.
In the absence of 452 CMR 1.19 (4), the argument could be made that the employee had not "prevailed" if a discontinuance hearing resulted only in the reduction of benefits. However, the rule makes it plain that an employee has indeed prevailed so long as she remains on reduced weekly benefits.
As the self-insurer rather than Ms. Conroy prevailed, I would stay with board precedent and reverse the order to pay a § 13A(5) fee. See Betty v. Olsten Health Care, 10 Mass. Workers' Comp. Rep. 623 (1996); Pagnani v. Demoulas/MarketBaskets, 9 Mass. Workers' Comp. Rep. 4, 5 (1995); Cf. Gonzalez's Case, 41 Mass. App. Ct. 39, 42 (1996).
________________________ William A. McCarthy Administrative Law Judge
Filed: October 1, 1997