ZATSOS v. BORDEN RESINITE, No. 8829689 (Jun. 26, 1998)


Soterios Zatsos, Employee v. Borden Resinite, Employer, Borden Resinite, Insurer

BOARD No. 08829689Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 26, 1998

REVIEWING BOARD DECISION
(Judges Wilson, Fischel[1] and Levine)

[1] Judge Fischel participated in panel discussions, but is no longer serving as a member of the reviewing board.

APPEARANCES

Daniel C. Finbury, Esq., for the employee at hearing

Nancy L. Hall, Esq., for the employee on brief

Frederick M. Fairburn, Esq., for the self-insurer

WILSON, J.

Both parties appeal from the decision of an administrative judge, who found the employee not entitled to weekly benefits after March 10, 1992, but awarded §§ 13 and 30 medical benefits and an attorney’s fee. We summarily affirm the decision as to the employee’s appeal, and reverse the award of an attorney’s fee.

Soterios Zatsos is currently seventy-two years old. (Employee exhibit 1.) A native of Greece, he completed the eleventh grade in that country before emigrating to the United States in 1949. In 1969 he began working as a manual laborer, mostly as a machine operator for this employer. (Dec. I[2] , 829-830.)

On December 11, 1989, the employee suffered an injury to his back at work. He reported the injury to his foreman but did not miss any time from work. The employer subsequently placed him in a light duty job assembling cardboard cartons and affixing labels to them, resting when needed. He performed this job until March 10, 1992, his last day of work. The parties stipulated that the employee received medical treatment for his back during this same time period. (Dec. I, 828, 830-831.)

Beginning on March 9, 1992, the employer implemented a new company policy whereby all employees worked twelve hour shifts including every other weekend. The employee worked his first twelve hour shift driving a forklift. He experienced increased pain. The following day, March 10, 1992, he complained about the forklift work and the employer placed him back on the light duty labeling job where he worked his second twelve hour shift. He did not return to work after that day.[3] (Dec. I 831-832.)

The employee filed a claim for compensation pursuant to §§ 13, 30 and 34. The self-insurer initially resisted the claim and, following a § 10A conference, the claim was denied whereupon the employee appealed. Following a hearing de novo, the judge denied and dismissed the employee’s claim. (Dec. I, 838.) In his general findings, the judge found that the employee left his employment due to his dissatisfaction with the change to the twelve hour work shift and not because of the worsening of his back condition, noting that the employer had offered a light duty job for the employee at full pay, which allowed the employee to rest as needed. (Dec. I, 837-838.)

The employee appealed that decision and the reviewing board remanded the case to the hearing judge, directing him to make further findings on the employee’s incapacity and allowing the judge to take additional evidence in his discretion. Zatsos v.Borden Resinite, 11 Mass. Workers’ Comp. Rep. 60, 63-64 (1997). After determining that the instructions of the reviewing board could be met with the evidence presented at the original hearing, the judge issued a second decision that established liability and found the self-insurer responsible for all reasonable and necessary medical treatment pursuant to §§ 13 and 30, but also found the employee not entitled to weekly wage replacement benefits because a full-pay job that met all his work restrictions was available. (Dec. II, 429-430.) The judge specifically found the employee able to return to work for twelve hour shifts on a sustained basis. (Dec. II, 429.) He then ordered the self-insurer to pay for all reasonable and necessary medical treatment and a fee to the employee’s attorney.[4]

One of the issues presented by the current cross-appeals has merit. The self-insurer asserts that no attorney’s fee was due. We agree.

General Laws c. 152, § 13A(5), as amended by St. 1991, c. 398, § 35, states in pertinent part:

Wherever an insurer . . . contests a claim for benefits and . . . (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee’s attorney in an amount equal to three thousand five hundred dollars plus necessary expenses.

The regulations applicable at the time of the hearing in this case, 452 Code Mass. Regs. § 1.19(4), state in pertinent part:

In any proceeding before the division of dispute resolution, the claimant shall be deemed to have prevailed . . . when compensation is ordered or is not discontinued . . . 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 payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision[.]

The employee’s claim was for weekly wage replacement benefits and. medical benefits. The claim for weekly benefits was denied at conference; the employee appealed and the claim was again denied at hearing. The employee did not prevail on this issue. SeeConnolly’s Case, 41 Mass. App. Ct. 35, 37-38 (1996).

As for the employee’s claim for medical benefits, the self-insurer accepts its responsibility for the payment of reasonable and related medical expenses. But it denies that a general order for ongoing payment of those expenses constitutes a “benefit” for which the employee’s attorney is entitled to a fee. There is nothing in the record before us to suggest that any medical bills remained unpaid at the time of hearing. There being no real medical dispute, a general order to pay reasonable and related medical treatment does not meet the regulatory meaning of “prevail” that confers entitlement to a § 13A attorney’s fee.Paygai v. Wrentham State School, 10 Mass. Workers’ Comp. Rep 685, 686 (1996).

Because 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). The award of a legal fee is reversed. In all other aspects the decision of the administrative judge is summarily affirmed.

So ordered.

____________________ Sara Holmes Wilson Administrative Law Judge
___________________ Frederick E. Levine Administrative Law Judge

FILED: June 26, 1998

[2] Two decisions were issued in this claim. “Dec. I” refers to the October 26, 1994 decision. That decision was appealed to the reviewing board, which remanded the case to the hearing judge. “Dec. II” refers to the March 31, 1997 decision. Because Dec. II adopts, rather than repeats, certain Dec. I subsidiary findings, we refer to the earlier decision.
[3] His next scheduled work day was March 13, 1992.
[4] The fee was ordered to be equally divided between the attorney who tried the case and the attorney who pursued the appeal. (Dec. II, 430.)