Opinion
BOARD No. 062162-93
Filed: November 17, 1997
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Bernice C. Stone, Esq., for the employee
Francis O'Toole, Esq., for the insurer
The employee appeals from a decision that awarded him a closed period of § 34 total incapacity benefits and § 30 medical treatment. We affirm those awards and amend the decision by awarding employee's counsel a fee pursuant to § 13A(5).
This case has been before the reviewing board once before. On July 16, 1996, we approved the parties' stipulation to remand the decision to the administrative judge for further findings of fact and conclusions of law. The judge rendered a new decision ("Dec. II"). The case is before us on the employee's appeal.
Theodore Jens Skov was employed by the Harrington House as a soup chef. He prepared patients' meals and carried cases of meat and canned goods weighing up to seventy pounds. His duties also required repetitive bending. (Dec. II, 4.) On December 3, 1993, he slipped on a wet area near a steam table and fell on his right knee. Shortly thereafter, he returned to work on a modified basis. On May 31, 1994, he left work due to pain and has not worked since. (Dec. II, 4.)
On appeal, the employee argues error in the discontinuance of his benefits on the October 16, 1995 § 11A doctor's deposition date, given the doctor's opinion of continuing impairment due to his right knee. However, the doctor also had an opinion on causal relationship and it was that, although the work incident aggravated a preexisting knee condition, the symptoms "at present" were not related to that accident. ("Court" Ex. #1; Dep. 5-7.) Despite the availability of other dates in the record, any of which may be more evidentiarily sound, the one chosen by the judge was the most advantageous from the employee's perspective. See, e.g. Sanchez v. City of Boston, 11 Mass. Workers' Comp. Rep. ___ (April 9, 1997). As the insurer has not appealed this issue, they have conceded the incapacity period awarded. The judge adopted the uncontroverted medical opinion that the employee's then present symptoms were not causally related to the work injury. (Dec. II, 8-9.) We need go no further. We affirm this part of the decision.
Additionally, the employee maintains that a fee is due his counsel as he "prevailed" on a claim which was contested by the insurer. We agree. Following the filing of a claim for § 34 benefits, a § 10A conference order directed the insurer was to pay continuing § 34 benefits beginning on July 14, 1994. The insurer appealed to a hearing de novo. (Dec. I, 2.); (Dec. II, 2.) The original decision awarded a closed period of benefits up to May 15, 1995. (Dec. I, 9.) After the stipulated remand, the judge enlarged the closed period up to October 16, 1995. (Dec. II, 9.) As benefits were in jeopardy and were ordered at the de novo hearing for a disputed period, employee's counsel is due a fee. See G.L.c. 152, § 13A(5); 452 Code. Mass. Regs. 1.19 (4);Connolly's Case, 41 Mass. App. Ct. 35, 37 (1996).
The decision is affirmed as amended by the award of the appropriate fee pursuant to § 13A(5).
So Ordered.
_______________________________ Susan Maze-Rothstein Administrative Law Judge
_______________________________ William A. McCarthy Administrative Law Judge
_______________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: November 17, 1997