No. 038442-93Commonwealth of Massachusetts Department of Industrial Accidents
December 29, 2004.
Reviewing Board Decision, (Judges Horan, McCarthy and Costigan).
APPEARANCES
Dana Johnson, Esq., for the third party.
Joseph J. Durant, Esq., for the insurer.
HORAN, J.
This case is before us, again,[1] on the insurer’s appeal[2] of an administrative judge’s decision finding Steven Galena, D.C., liable for penalties under § 14(2)[3]
of our workers’ compensation act.
The administrative judge found that Dr. Galena “[k]nowingly made a false statement in a proceeding within the Division of Dispute Resolution” relative to the employee’s medical history. (Dec. 6.) She assessed and ordered Mr. Galena to pay “the whole cost of the conference[4] proceeding of June 7, 1994, and the insurer’s reasonable attorney’s fee for that conference.” (Dec. 7.) She also required him to pay the insurer a penalty in an amount equal to six times the average weekly wage in the commonwealth. Id. However, she made no findings regarding the amount of costs and attorney’s fees due. Id. Instead, she invited the parties to “request a hearing for the purpose of determining same,” if they could not reach an agreement. Id.
No agreement was reached. Rather than request a further hearing before the judge, the insurer appealed her decision. It asks us to “confirm” the assessed penalty equal to six times the average weekly wage in the commonwealth,[5] to determine the attorney’s fees due, and to ascertain the cost of the conference proceeding. (Insurer br. 6.) We affirm the penalty, but lack the power to make findings on the remaining issues. See G.L. c. 152, § 11(C); Kelley v. General Elec. Co.,
12 Mass. Workers’ Comp. Rep. 476, 478 (1998). These tasks are left to the administrative judge. See G.L. c. 152, §§ 10A, 11 and 11(B). Accordingly, we affirm the award of a penalty equal to six times the average weekly wage in the commonwealth, and recommit the case for further proceedings[6] to determine the whole cost of the conference proceeding, and the amount of reasonable attorney’s fees due.
So ordered. ________________________ Mark D. Horan Administrative Law Judge
________________________ Patricia A. Costigan Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: December 29, 2004
13 Mass. Workers’ Comp. Rep. 360 (1999).
If it is determined in any proceeding within the division of dispute resolution, a party, including an . . . expert medical witness acting on behalf of an employee . . . concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly used perjured testimony or false evidence, knowingly made a false statement of fact or law, participated in the creation or preservation of evidence which he knows to be false, or otherwise engaged in conduct that such party knew to be illegal or fraudulent, the party’s conduct shall be reported to the general counsel of the insurance fraud bureau. Notwithstanding any action the insurance fraud bureau may take, the party shall be assessed, in addition to the whole costs of such proceedings and attorneys’ fees, a penalty payable to the aggrieved insurer . . . in an amount not less than the average weekly wage in the commonwealth multiplied by six.