Opinion
11-P-1257
05-11-2012
BONNIE MAHONEY'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Discerning no error in the decision of the reviewing board of the Department of Industrial Accidents, which summarily affirmed an administrative judge's determination that the employee was not entitled to attorney's fees, we affirm.
Where, as here, the reviewing board summarily affirmed the administrative judge's decision, we inspect the findings and reasoning of the administrative judge. Dalbec's Case, 69 Mass. App. Ct. 306, 313 (2007).
Background. The employee suffered a work-related injury in March, 2008, for which she received medical treatment from two providers. The self-insurer refused to pay those providers' medical bills and the employee filed a claim, which was denied at the G. L. c. 152, § 10A, conference. The employee appealed and subsequently was examined by an impartial medical examiner (IME), who opined that the treatment sought by the employee from the providers was causally related to the injury.
Four months later (and eighteen days before the G. L. c. 152, § 11, hearing) the employee received a written offer from the self-insurer to pay the disputed medical bills. The employee rejected the offer on the ground that the offer failed to concede causal relationship, an issue previously disputed by the insurer. The offer stated: 'The Insurer shall pay for medical treatment related to the injuries sustained on 3/11/08; specifically the Insurer shall pay for the treatment provided by both [providers].'
The offer having been rejected, the insurer contested causation at the § 11 hearing. The administrative judge adopted the IME's opinion as to causation and ordered the self-insurer to pay the disputed bills. However, relying on 452 Code Mass. Regs. § 1.19(3) (2008), the administrative judge concluded that the employee was not entitled to attorney's fees because she had not prevailed at the hearing. As the administrative judge explained, the employee had rejected an offer from the self-insurer prior to the hearing and the compensation ordered did not exceed that offer.
Section 1.19(3) concerns entitlement to attorney's fees and provides, in relevant part: 'When an insurer, at least two days before a conference, or at least five days before a hearing, serves on a claimant or person receiving compensation or the representative of such claimant or person a written offer to pay weekly compensation or compensation under M.G.L. c. 152, §§ 30 or 36, and such offer is not accepted, the insurer shall not be required to pay any fee under M.G.L. c. 152, § 13A, for such conference or hearing, unless the order or decision rendered directs a payment of said weekly or other compensation in excess of that offered.'
Discussion. On appeal, the employee claims that 452 Code Mass. Regs. § 1.19(3) is in conflict with the provisions of G. L. c. 152, § 13A(5), and, therefore, should not have been applied by the administrative judge. While we are skeptical of the validity of this argument, we need not address it because, contrary to her assertion, the employee was not a prevailing party under § 13A(5). '[A]n employee is considered the prevailing party if she 'succeeds on any significant litigation issue, achieving some of the benefit sought in the controversy." Conroy's Case, 61 Mass. App. Ct. 268, 273-274 (2004), quoting from Connolly's Case, 41 Mass. App. Ct. 35, 38 (1996). Here, the administrative judge found that the self-insurer had made a timely offer to settle the claim and implicitly admitted causation. The employee's rejection of the offer compelled the parties to appear at a hearing where the administrative judge's ruling put her in the same position she would have been in had she accepted the original offer. In these circumstances, where the employee has 'achieve[d] the status quo . . . the employee could not . . . be considered to have prevailed.' Green's Case, 52 Mass. App. Ct. 141, 144-145 (2001) ('[A]n employee shall not be considered to have prevailed . . . when it is the employee's own appeal, rather than the insurer's appeal, that has placed the employee's benefits in jeopardy and the employee gains no increased benefits from the appeal').
General Laws c. 152, § 13A(5), as amended by St. 1991, c. 398, § 35, provides in pertinent part: '[w]henever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney.'
This is so because 'one of the purposes for the award of attorney's fees in worker's compensation cases is to discourage unnecessary litigation.' Green's Case, 52 Mass. App. Ct. 141, 144 (2001).
Accordingly, we conclude that the administrative judge's decision is not arbitrary or capricious ('in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making'), an abuse of discretion, or otherwise not in accordance with law. DiFronzo's Case, 459 Mass. 338, 341 (2011), quoting from Carpenter's Case, 456 Mass. 436, 439 (2010).
Decision of reviewing board affirmed.
By the Court (Graham, Vuono & Agnes, JJ.),