BOARD No. 51959-92Commonwealth of Massachusetts Department of Industrial Accidents
Filed: January 31, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Thomas C. McDonough, Esq., for the employee
David M. O’Connor, Esq., for the insurer
FISCHEL, J.
On April 5, 1994 Dorothy Pugh’s claim for worker’s compensation benefits was denied and dismissed without prejudice, based on the administrative judge’s finding that the § 11A statutory examination fee, required at hearing, had not been paid. The employee filed this appeal.
The judge found that where the parties had not agreed to dispense with the otherwise required statutory examination, the employee was obliged to pay the fee required under § 11A. He found that “[b]y not satisfying the obligations placed upon her by section 11A of the Act she has failed to perfect her appeal and meet her evidentiary burden.” Accordingly he denied and without prejudice, dismissed her claim.
In dismissing the claim without prejudice the judge afforded the employee an opportunity to refile her claim for workers’ compensation. The employee may file her claim and may seek benefits from the date of the alleged injury.
When the administrative judge denied and dismissed the employee’s claim he did so without the benefit of the decision in Neff v. Commissionerof the Dep. of Industrial Accidents, 421 Mass. 70 (1995). In Neff, the Supreme Judicial Court concluded that: “consistent with the intent of the Legislature, the workers’ compensation statute implicitly confers on the commissioner the authority to grant waivers of the impartial medical examination fee required by G.L.c. 152, § 11A, for indigent claimants, even those represented by attorneys. “Id. at 76-77.
If it is appropriate in this case, the employee may afford herself of the opportunity to seek such waiver. The decision of the administrative judge is affirmed.
So ordered.
________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 31, 1996