Opinion
BOARD No. 2023-93
Filed: October 17, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Joseph A. Franco, Esq., for the employee
Karen Catuogno, Esq., for the insurer
Phyllis Ortona, twenty-seven years old at the time of the hearing, started working for Burger King in December 1990. In December 1991, while lifting at work she injured her back. Ms. Ortona was out of work for two months, the case was accepted, and compensation benefits paid. She returned to work in February 1992, and continued to work until March 3, 1993.
On that day, she slipped on ice outside the rear door of the restaurant injuring her back. The insurer started payment of weekly benefits but terminated them during the pay without prejudice period. Weekly compensation was resumed as a result of a conference order. The insurer appealed the conference order and the case went to a full evidentiary hearing. A decision following the hearing ordered the insurer to pay weekly temporary total benefits of $124.37 per week from March 13, 1993, and continuing. The judge also directed the insurer to pay dependency benefits under § 35A of the Act of $12.00 per week from March 13, 1993 until March 19, 1994 and at $18.00 per week effective March 20, 1994. Finally, the decision ordered payment of medical expenses, including the cost of chiropractic treatments, and an attorney's fee to employee counsel in the amount of $3,820.66. The insurer appeals.
In its brief, the insurer raises a single issue. It contends that the order of a § 35A dependency payment of $6.00 for a third dependant commencing March 20, 1994 was error. The industrial injury occurred on March 3, 1993 and the employee's third child was born on March 19, 1994, more than a year later. Under the express terms of § 35A a "dependent" includes a child under the age of eighteen years of age. The definition also specifically defines children as "any children of the injured employee conceived but not born at the time of the employee's injury." Clearly it was error to order a $6.00 weekly dependency payment for this child given the biological impossibility of conception prior to the injury. Indeed, the employee concedes that the award for the third child was legal error!
The employee asserts that the real reason for the insurer's appeal to the reviewing board was to challenge the order of payment of chiropractic bills. The employee accurately points out that at the pre-trial conference held before a single administrative law judge under the provisions of 452 CMR 1.15 (3) the insurer raised the issue of dependency and questioned the appropriateness of the order of payment of the chiropractic expenses. The appellant insurer requested that a transcript of the proceedings be provided. By arguing only the dependency issue in its brief, the insurer tacitly waived the issue of payment of chiropractic expenses.
Because we now reverse the judge's finding on the only issue raised on appeal, the employee has not "prevailed" within the meaning of § 13A(6); thus, employee counsel, contrary to her contention, is not entitled to a fee for services rendered the employee before the reviewing board. Much of what the employee argues is not part of the record before us. We simply note that it would be counterproductive to require an appellant to continue to argue every issue originally raised. After reviewing the hearing transcript it is and should be open to an appellant to withdraw some part or all of its appeal. If the employee wanted to test the legitimacy of the insurer's appeal on the issue of chiropractic bills, the employee need only have withdrawn its opposition on the dependency issue at any time after the appeal is taken. If the insurer responded by in turn withdrawing its appeal on the chiropractic bill issue, the employee would have been entitled to a fee under 452 CMR 1.19 (5). That regulation provides that ". . . an employee shall be considered to have prevailed before the reviewing board if an insurer has withdrawn after an appeal for review has been filed under M.G.L.c. 152, § 11C." In any event, if the employee believes the insurer has engaged in an unfair practice there is another regulatory remedy.
452 CMR 7.04 provides in pertinent part:
(1) Pursuant to M.G.L.c. 23E, § 3 (b)(8), the Department's Division of Administration shall receive for investigation, on a form prescribed by the Department, written allegations of questionable claims handling techniques or patterns of unreasonably controverting claims by insurers, group self-insurers, third party administrators, employers, or other entities, including agents and brokers, handling workers' compensation claims.
(2) The Division of Administration shall conduct an investigation, and shall provide the party against whom the allegation is made an opportunity to respond in writing to the written allegations within 30 days. The findings of said investigation shall be reported to the Commissioner of Insurance, to the party making the allegation, and to the respondent party, except that when a written allegation involves a self-insured employer, a Department-certified vocational rehabilitation provider, or a Department-approved utilization review agent, the findings shall be forwarded to the Commissioner of the Department rather than to the Commissioner of Insurance.
(3) Questionable claims handling techniques or patterns of unreasonably controverting claims shall include, but not be limited to, techniques or patterns of practice which involve the following: . . .
(e) prosecuting complaints or defending against claims without reasonable grounds, including, but not limited to, engaging in practices found violative of M.G.L.c. 152, § 14; . . .
We reverse the decision of the hearing judge on the single, narrow issue of dependency raised. In all other respects the judge's decision stands.
So ordered.
_______________________________ William A. McCarthy Administrative Law Judge
_______________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________________ Suzanne E. K. Smith Administrative Law Judge