BOARD No. 083834-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: December 11, 1995
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Steven D. Rose, Esq., for the employee
Amy Scarborough, Esq., for the insurer
McCARTHY, J.
Robert Bilodeau injured his back while bending and lifting at a machine in the course of his employment on November 7, 1989. He was forty-two years of age at the time and employed as a laborer at Universal Forest Products. The insurer initially denied, but later accepted the case on June 29, 1990 and began paying weekly temporary total incapacity benefits. Thereafter the insurer petitioned for a modification or discontinuance of weekly benefits and the matter was conferenced before an administrative judge on October 21, 1991. The administrative judge denied the insurer’s request and the insurer filed an appeal. At a discontinuance hearing held on May 21, 1992, the employee and the insurer entered into an agreement providing for § 35 benefits and a weekly earning capacity of $100. (Insurer’s brief at 1)
Some time later the employee filed a claim seeking reinstatement to § 34 benefits. The matter was conferenced before a different administrative judge on December 7, 1992, and that judge issued an order denying the employee’s claim for further weekly temporary total benefits. Neither party appealed. On September 14, 1993, a discontinuance conference was held before a third administrative judge. That judge issued an order authorizing discontinuance of weekly benefits effective September 21, 1993. The employee filed a timely appeal.
Because the claim involved disputed medical issues the procedure established by § 11A came into play. In pertinent part § 11A provides that:
When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. The insurer or any claimant represented by counsel who files such appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the medical examination under this section within ten days of filing said appeal . . .[1]
G.L.c. 152, § 11A (2) (St. 1991, c. 398, § 30).
In lieu of paying the established $350 fee, the employee asserts that he wrote to the Commissioner of the Department of Industrial Accidents, requesting a waiver of the fee because of his indigency. (Employee’s brief at 1) The Commissioner allowed a sixty day extension in which to submit the $350 fee. (Dec. 2) Thereafter counsel for the insurer filed a motion to dismiss the employee’s claim for failure to perfect the appeal by payment of the required fee. (Dec. 2) Employee counsel states that he filed written opposition to the insurer’s motion. (Employee’s brief at 1) The administrative judge issued a decision which ordered “[t]hat the Employee’s claim for further benefits [be] denied and dismissed for lack of prosecution.” (Dec. 2) We have the case on appeal by the employee.
When the administrative judge denied and dismissed this claim he did so without benefit of the decision in Neff v. Commissioner of the Dep’t. ofIndus. Accidents, 421 Mass. 70 (1995). In Neff, the Supreme Judicial Court concluded that: “consistent with the intent of the Legislature, the workers’ compensation statute implicitly confers on the commissioner the authority to grant waivers of the impartial medical examination fee required by G. L. c. 152, § 11A, for indigent claimants, even those represented by attorneys.” Id. at 76-77. The commissioner must now decide whether to exercise this heretofore undefined authority. See Mondelius v.Hellenic Nursing Home, 9 Mass. Workers’ Comp. Rep. ___ (filed October 31, 1995). Accordingly we return this case to the senior judge for further proceedings consistent with the principles set out in Neff.
So ordered.
________________________ William A. McCarthy Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 11, 1995