Kimberly Patterson, Employee v. Buckley Nursing Home, Employer, Wausau Insurance Co., Insurer

Board No. 8881-91Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 16, 1996

REVIEWING BOARD DECISION

(Judges Kirby, Fischel and Wilson)

APPEARANCES:

James N. Ellis, Jr., Esquire, for the employee

Lewis G. Evangelidis, Esquire, for the insurer

KIRBY, J.

The employee appeals from a judge’s decision dismissing her claims for compensation on grounds that she failed to perfect her appeal of the conference order by paying the medical examination fee required under G.L.c. 152, § 11A.[1] No fee was required under § 11A(2) where the issues presented for hearing did not involve medical issues, but rather legal ones. We therefore vacate the decision and remand.

The employee sought benefits under §§ 13 and 30 for the payment of outstanding chiropractic bills, and under § 1 (1) for an adjustment in the calculation of her average weekly wages to reflect concurrent out of state employment.[2]
Subsequently, the judge allowed the employee’s motion to add a claim under § 8 for penalties due to the insurer’s failure to pay § 36 benefits under a March 28, 1994 agreement.

After a conference, the judge ordered payment of the outstanding medical bills, but denied the employee’s claims under § 1 (1) for concurrent wages and under § 8 for penalties. (Dec. 1-2.)[3] The employee appealed from the conference order solely on issues pursuant § 1 (1) and § 8. The insurer did not appeal.

A hearing was scheduled for September 27, 1994. The parties met on that day, but no testimony was taken. The parties and the judge discussed how the case would proceed. The employee, several times thereafter, requested hearing dates, but none was scheduled prior to the filing of the judge’s decision. (Employee’s Brief, at 2-3.) On May 31, 1995, the judge filed his decision denying the employee’s claim. He found that by the September 27, 1994 scheduled hearing date, the employee had neither paid the required fee under § 11A(2) nor filed a petition for an extension of time. It is the employee’s appeal from the dismissal of her case that is before us.

Section § 11A(2) provides in pertinent part that when a “dispute over medical issues is the subject of an appeal of a conference order . . . [the party] . . . who files such appeal shall also submit a fee . . . to defray the cost of the medical examination under this section with ten days of filing said appeal. . . .” G.L.c. 152, § 11A (2).

Similarly, 452 Code Mass. Regs. § 1.11(1)(a) provides:

(a) Where the subject of an appeal is a claim or complaint involving a dispute over medical issues for which the appointment of an impartial examiner is required, a party has up to ten calendar days following the filing of the appeal to pay the department the requisite fee in order to perfect the appeal. Where more than one party files an appeal, the department shall schedule an examination or review by an impartial examiner upon receipt of the first check in an amount of the requisite fee. All other checks will be returned.

In this case, the issues presented by the employee were the legal issues of the concurrent out of state employment for purposes of calculating the average weekly wage under § 1 (1) and penalties under § 8. Neither claim involved a dispute over medical issues. The insurer was ordered at conference to pay for medical treatment under §§ 13 and 30, and it did not appeal that order. Thus, no filing fee was required. See G.L.c. 152, § 11A (2); 452 Code Mass. Regs. § 1.11 (1)(a). Compare Bilodeau v. Universal Forest Prods.,
9 Mass. Workers’ Comp. Rep. 723, 724 (1995); Mondelius v.Hellenic Nursing, 9 Mass. Workers’ Comp. Rep. 627, 628-629 (1995).

Accordingly, we vacate the judge’s decision and remand the case for a hearing de novo on the merits of the legal issues in dispute.

So ordered.

________________________ Edward P. Kirby Administrative Law Judge
________________________ Carolynn Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge

Filed: September 16, 1996

[1] Section 11A(2) provides in pertinent part that “[w]hen 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, [a party] shall . . . also submit a fee . . . to defray the cost of the medical examination under this section . . . Murphy v.Commissioner of Dept. of Indus. Accidents, 418 Mass. 165, 166-167, 171 (1994) (unconstitutional requirement that represented claimants pay a fee without imposing the same requirement pro se
claimants severed from the remainder of the statute and court finding waiver of the fee in cases of indigency is possible).
[2] G.L.c. 152, Section 1 (1) provides in pertinent part:

(1) `Average weekly wages’, the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. . . .
In case the injured employee is employed in the concurrent service of more than one insured employer or self-insurer, his total earnings from the several insured employers and self-insurers shall be considered in determining his average weekly wages.

[3] Sections 8 (1) and 8 (5) provide for penalties where an insurer does not comply with the other provisions of § 8 for modification or termination of benefits. See G.L.c. 152, §§ 8 (1) and 8 (5).