DEROSIERS v. HRP CORPORATION, No. 012674-05 (Jun. 27, 2011)

No. 012674-05.Commonwealth of Massachusetts Department of Industrial Accidents.
Filed: June 27, 2011.

REVIEWING BOARD DECISION

(Judges Fabricant, Horan and Levine)

The case was heard by Administrative Judge McManus.

APPEARANCES

Charles E. Berg, Esq., for the employee at hearing and on appeal

James N. Ellis, Esq., for the employee on appeal

Linda D. Oliveira, Esq., for the insurer

FABRICANT, J.

The employee appeals from a decision awarding § 36 benefits and recoupment, but denying her claim for an attorney’s fee pursuant to § 13A(5).[1] The employee maintains that the judge’s order for recoupment of $11,062.05, to be repaid in monthly installments of $150.00, is a benefit to her, requiring an attorney’s fee award. We disagree.

In June of 2007, shortly after her accepted industrial injury, the employee returned to part time work, and, ultimately, full time work, without notifying the insurer, [2] creating a significant overpayment. (Dec. 4-5, 10.) Further, the earlier hearing decision in this case, filed on April 29, 2008, established an earning capacity resulting in an additional overpayment of $1,404.30. (Tr. 55.) The judge found the total outstanding overpayment to be $11,062.05. (Dec. 10.)

The direct examination of the employee included inquiry into her personal finances. (Tr. 18-24.) The judge found the employee receives $2,032.00 in monthly income and has monthly expenditures of approximately $1,900.00. The judge ordered the employee to fully repay the $11,062.05 overpayment, but at the rate of $150.00 per month, as there were no current weekly benefits from which overpayments could be recouped pursuant to § 11D(3).[3]
(Dec. 9-10.) See Brown v. Highland House Apts., 12 Mass. Workers’ Comp. Rep. 322 (1998). The manner in which the judge structured the recoupment in her order appears to be a pragmatic acknowledgement of the employee’s limited financial resources. This, by itself, does not rise to the level of a “benefit” to be considered in determining whether the employee had a successful outcome. Moreover, the judge’s award of $1,791.62 in § 36 loss of function benefits was no more than what the insurer had offered months prior to the hearing. See 452 Code Mass. Regs. § 1.19(3). As such, we conclude the judge did not err by declining to award counsel fees under § 13A(5). The employee simply did not “succeed[] on any significant litigation issue.” Connolly’s Case, 41 Mass. App. Ct. 35, 39 (1996).

We now turn to the question of § 14 liability on the part of counsel for the employee. The insurer offered to pay the entire amount ultimately awarded in § 36 benefits months before the hearing. However, there is evidence[4] that counsel did not relay this offer to the employee until the day of the hearing.[5]
(Dec. 6.) Based on this evidence, we invited the parties to brief the issue of whether § 14(2) penalties might be due for counsel’s violation of Massachusetts Rules of Professional Conduct 1.4(a), [6] for failing to inform his client of the settlement offer and frivolously proceeding with litigation.[7]
Additionally, the question of counsel’s obligations with regard to the employee’s allegedly false or inaccurate testimony on this point was also raised. Following the submission of supplemental briefs, we decline to find a § 14 penalty due.

We also do not go so far as to say that the prosecution of this appeal is “without reasonable grounds” pursuant to § 14(1). To the employee, the payment of recoupment in installments over the course of approximately six years may be better than an order to remit full payment immediately. Even though the advantage to the employee here is not of sufficient merit to support a fee award for “prevailing” pursuant to § 13A(5), the argument to the contrary is not frivolous.

Accordingly, the decision is affirmed.

So ordered.

________________________________ Bernard W. Fabricant Administrative Law Judge

________________________________ Mark D. Horan Administrative Law Judge

________________________________ Frederick E. Levine Administrative Law Judge