PAYGAI v. WRENTHAM STATE SCHOOL, No. 065855-89 (Sep. 30, 1996)

BOARD No. 065855-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 30, 1996

REVIEWING BOARD DECISION

(Judges McCarthy, Maze-Rothstein and Smith)

APPEARANCES

Bernice Chafetz Stone, Esq., for the employee.

Terence H. Buckley, Esq., for the self-insurer.

McCARTHY, J.

On October 21, 1989, Reuben Paygai injured his back and right hand in the course of his employment. The self-insurer accepted liability for the injury and paid § 34 weekly total temporary compensation benefits from the date of injury to December 30, 1993 when Mr. Paygai returned to work for the same employer.

Thereafter the employee filed a claim for further benefits which the self-insurer resisted. The claim was denied at conference and upon the employee’s appeal a full evidentiary hearing was held. In her decision the administrative judge denied the employee’s claim for weekly incapacity benefits but found that he was entitled to ongoing medical benefits and awarded the statutory legal fee to the employee’s attorney.[1] We have the case on appeal by the self-insurer.

The self-insurer argues that the order “That the insurer pay ongoing Sections 13 and 30 benefits for the Employee’s back condition[,]” (Dec. 11), is without foundation and must be reversed. If the finding directing payment of future medical benefits falls, then, argues the self-insurer, the employee has failed to prevail on any aspect of his claim so the award of a legal fee under § 13A(5) is error. We agree for the following reasons.

The self-insurer does not dispute its responsibility for the payment of reasonable and related medical expenses up to the date of hearing before the administrative judge. Rather it denies any obligation to pay “further Section 13 and 30 benefits.” (Dec. 3.) There is nothing in the record before us to suggest that any medical bills incurred prior to the hearing remained unpaid. Neither is there anything in the record with respect to a planned course of treatment for the future.[2] As there was no real medical dispute, a general order to pay reasonable and related medical expenses does not satisfy the requirement that the employee “prevail” (452 CMR 1.19 (4)) in order to be entitled to payment of attorney’s fees under § 13A.

The employee was examined by an impartial medical expert under the provisions of § 11A(2). The judge used the report of the impartial medical expert (Joint Exhibit #1) as support for the following finding:

The Impartial report establishes the need for ongoing treatment such as an additional CT scan. The employee was credible that medication helps alleviate pain and discomfort.

(Dec. 6.)

However, the impartial examiner did not recommend an additional CT scan. He simply noted that changes in the spine seen on an MRI “can be investigated further with a CT scan.” (Joint Exhibit #1.) This is well short of establishing a need for this test. No claim for payment for a CT scan was made. Indeed we don’t even know if the employee would submit to the test if his doctor advised it! Neither is there an express claim for payment for medications. The only medications being taken and reported to the impartial was medicine the employee took for high blood pressure. (Dep. Dr. Aaron 25.)

As the employee did not prevail in any part of his claim for c. 152 benefits, his attorney is not entitled to payment of a legal fee under § 13A(5) so that award is reversed.[3]

So ordered.

_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge

Filed: September 30, 1996