BOARD No.: 00283193Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 31, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein).
APPEARANCES
Sandra Jenkins Bryant, Esq., for the employee.
Kevin P. Jones, Esq., for the insurer on appeal.
Paul M. Moretti, Esq., for the insurer on brief.
Smith, J.
The insurer appeals from a decision of an administrative judge reducing the employee’s weekly incapacity benefits, but awarding an attorney’s fee under the provisions of G.L.c. 152, § 13A(5). The insurer challenges only the judge’s fee award. We affirm the decision.
The employee suffered an industrial injury on January 25, 1993. (Dec. 2.) The insurer accepted liability, and commenced payment of temporary total incapacity benefits. (Dec. 4.) On October 11, 1995, the employee filed a claim for permanent and total incapacity benefits under § 34A or § 35 partial incapacity benefits in the alternative. (Employee’s Claim.) As a result of a § 10A conference held on March 28, 1996, the judge ordered the insurer to pay § 35 benefits based on the stipulated average weekly wage of $621.14, and an earning capacity of $150.00. (Dec. 1-2.) Both the employee and the insurer appealed that order to a hearing de novo. (Dec. 1.)
At hearing, the employee claimed § 34A benefits from January 26, 1996 to date and continuing, along with medical benefits under § 30. (Employee Ex. 1.) The insurer raised the issues of incapacity,[1] and extent thereof. (Insurer Ex. 1.) As a result of the hearing, the judge concluded the employee was partially incapacitated. (Dec. 9.) He awarded § 35 benefits as of January 26, 1996 to date and continuing, based on the stipulated average weekly wage, and an earning capacity increased from $150.00 to $190.00. (Dec. 10.) The judge ordered that the insurer pay § 30 medical benefits and an attorney’s fee of $4017.99, plus necessary expenses. Id. The judge noted that the insurer could recoup overpayments under § 11D. Id. It is the attorney’s fee award that brings the insurer to the reviewing board.
The insurer contends that the judge’s award of an attorney’s fee is contrary to law, because the employee did not prevail at the hearing within the meaning of § 13A(5). The insurer specifically argues that an employee seeking § 34A permanent and total benefits cannot be deemed to have prevailed, when that claim is denied and the insurer’s appeal of the conference order results in an increase in the employee’s earning capacity. (Dec. 10.) We disagree.
G.L.c. 152, § 13A(5) states, in pertinent part: “Whenever an insurer files a complaint or contests a claim for benefits and then the employee prevails at such hearing the insurer shall pay a fee to the employee’s attorney . . .” (Emphasis added). Here, the insurer contested the employee’s claim for benefits. By putting incapacity at issue at the hearing de novo, the insurer contested the employee’s entitlement to weekly incapacity benefit in toto. (Insurer’s Ex. 1.) There is no evidence in the record that the insurer conceded, by stipulation or otherwise, any entitlement to weekly benefits in the contested period of January 26, 1996 to date and continuing.
We follow Connolly’s Case, 41 Mass. App. Ct. 35 (1996) and conclude that “the employee falls within the typical `prevailing party’ formulation of one who succeeds on any significant litigation issue, achieving `some of the benefit’ sought in the controversy.” Id. at 38, quoting Nadequ v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978). We consider that the employee’s § 35 compensation at the rate of $258.68 per week (Dec. 10) constitutes “`some of the benefit’ sought in the controversy,” because the employee’s entire weekly incapacity benefits from January 26, 1996 onward were at stake. See Connolly at 37.
The departmental regulation, 452 CMR 1.19(4), further supports and clarifies our interpretation of § 13A(5). That regulation provides:
In any proceeding before the division of dispute resolution, the claimant shall be deemed to have prevailed, for the purposes of M.G.L.c. 152, § 13A(1)-(3),[2] when compensation is ordered or is not discontinued at such proceeding, except where the claimant has appealed a conference order for which there is no pending appeal from the insurer and the decision of the administrative judge does not direct a payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision . . .
In Connolly,[3] supra, the court applied this regulation in determining that the benefits awarded warranted a fee award:
Even though [the self-insurer] challenged the employee’s claims of disability at the de novo
hearing, the evidentiary burden was on the employee with respect to all of his claims. [Citations omitted.] Thus, all the benefits granted in the conference order were in jeopardy.[Footnote omitted.] Given that [the self-insurer] appealed from the conference order and the judge entered a de novo finding of total temporary [incapacity], the employee prevailed within the meaning of § 13A(5) since, in the terms of the interpretive regulation, “compensation [was] ordered” in the sense that the previously ordered payments were confirmed.
Connolly at 37 (emphasis added). Insofar as some of “the previously ordered payments were confirmed” in the present case, the regulation supports the award of a fee.
The present insurer urges that Connolly is distinguishable because the employee in that case received the same benefits after hearing as he had received after conference, whereas the employee in this case received a reduction in § 35 weekly payments as a result of the hearing decision. We do not read Connolly so narrowly. The insurer focuses too much attention on what the employee could have gained from the hearing. We look instead at what the employee could have lost.
Addressing the facts before it, the Connolly court provided the following reasoning as to how the employee prevailed, when he retained his conference benefits in the face of the self-insurer’s challenge at hearing:
Had the administrative judge, responding to [the self-insurer’s] appeal, in any way reduced the temporary [incapacity] payments awarded by the conference order, the employee would have been exposed to a recoupment claim by the employer or the recovery of overpayments pursuant to § 31D(3).[4]
Connolly at 37-38 (footnote in original). In the present case, the employee would have been subject to the same risk as Connolly, had the insurer prevailed in convincing the judge at hearing that it should pay no further weekly incapacity benefits whatsoever.
Finally, we are not persuaded by the insurer’s assertion that Rule 1.19(4), applied by the Connolly court, is nonsensical and should not be enforced. See G.L.c. 152, § 5. The regulation aptly provides for the insurer to pay the employee’s attorney where the result of the hearing is some measure of monetary success against the insurer as to any contested issue. See Gonzalez’s Case, 41 Mass. App. Ct. 39, 42 (1996) (court declines to interpret § 13A(5) to provide a fee where no compensation ordered). While we do not attempt to imagine all possible applications of the regulation, we note that it speaks generally in terms of compensation being ordered, as in the present case, or in saving some of the employee’s benefits from being altogether discontinued by way of an insurer’s complaint. This does not strike us as nonsense. We acknowledge that the regulation is employee-friendly, and corresponds with “[t] he primary goal of any provision on attorneys’ fees in workers’ compensation legislation [, which] is to ensure adequate representation of the injured worker or his dependents.” Nason and Wall, Massachusetts Workers’ Compensation Reform Act, 29 M.P.S. § 12.1 at 333 (Supp. 1995). As such, the regulation is not at all “contrary to the plain and unambiguous terms of the legislative provision [,]” Victoria, Inc. v. AlcoholicBeverage Control Commission, 33 Mass. App. Ct. 506, 512 (1992), and is therefore entitled to substantial deference. Finally, we think that the regulation encourages parties to narrow a contested issue at hearing, i.e. the “extent of incapacity”, thereby discouraging protracted litigation.
Accordingly, because the administrative judge’s award of an attorney’s fee in this case was not beyond the scope of his authority, arbitrary or capricious, or contrary to law, we affirm the decision. G.L.c. 152, § 11C.
So ordered.
___________________ Suzanne E.K. Smith Administrative Law Judge
___________________ William A. McCarthy Administrative Law Judge
___________________ Susan Maze-Rothstein Administrative Law Judge
Filed: March 31, 1998
The terms “incapacity” and disability are words of art in the Massachusetts workers’ compensation system. The Committee on Occupation Health of the Academy of Orthopaedic Surgeons has defined disability as “the limitations in work activities or the activities of daily living resulting from impairment as “anatomic or physiologic loss of function.” A Physician’s Primer on Workers’ Compensation, appendix 1, Glossary of Workers’ Compensation Terms, at 61-62 (1992). Locke has defined incapacity as an inability to earn resulting from disability, 29 Mass. Practice, Workmen’s Compensation, 2nd Ed., § 321 (1981). An employee “is not entitled to compensation for an industrial injury (other than injuries for which specific compensation is awarded under G.L.[Ter. Ed.] c. 152, §§ 36, 37) resulting in a physical disability if there is no impairment of earning capacity.” Atkins’ Case, 302 Mass. 562, 564, 20 N.E.2d 453 (1939).
(4) (second clause bars fee award “where the claimant has appealed a conference order for which there is no pending appealfrom the insurer and the decision of the administrative judge does not direct a payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision claimant . . .” (Emphasis added.)