COTTER v. HAWKEYE CONSTRUCTION CO, No. 009534-06 (Sep. 9, 2008)

No. 009534-06.Commonwealth of Massachusetts Department of Industrial Accidents
September 9, 2008.

REVIEWING BOARD DECISION

(Judges Costigan, McCarthy and Horan)

APPEARANCES

Mathew P. Smith, Esq., for the employee at hearing and on appeal

Paul A. Gargano, Esq., for the employee on appeal

David M. O’Connor, Esq., for the insurer

COSTIGAN, J.

In Cotter v. Hawkeye Constr. Co., 22 Mass. Workers’ Comp. Rep. ___ (June 27, 2008), we affirmed an administrative judge’s decision denying and dismissing the employee’s claim, due to his attorney’s refusal to go forward at hearing and present evidence to meet the employee’s burden of proof. We also found the employee’s appeal of that decision was brought and pursued without reasonable grounds and, therefore, that his attorneys should be penalized under the provisions of G. L. c. 152, § 14(1).[1] We retained jurisdiction of the case for the sole purpose of determining “the whole cost of the proceedings” due under § 14(1).

Pursuant to our directive, insurer’s counsel provided us with an affidavit of the fees and costs incurred by the insurer in defense of the employee’s appeal. Employee’s counsel failed to respond or otherwise challenge the amount claimed by the insurer within the time allotted.[2] Having reviewed the insurer’s affidavit, we find no reason to question the $3,494.50 amount claimed as incurred in defense of the employee’s appeal to the reviewing board.

Accordingly, pursuant to § 14(1), we order employee’s counsel to pay the insurer a penalty in the amount of $ 3,494.50.

So ordered.

___________________________ Patricia A. Costigan Administrative Law Judge

___________________________ William A. McCarthy Administrative Law Judge

___________________________ Mark D. Horan Administrative Law Judge

Filed: September 9, 2008