Opinion
BOARD No. 05600093
Filed: November 23, 1998
REVIEWING BOARD DECISION
(Judges Wilson, McCarthy Smith)
APPEARANCES
Michael C. Akashian, Esq., for the employee.
Matthew Connon, Esq., for the insurer at hearing.
John C. White, Esq. and Joyce E. Davis, Esq., for the insurer on brief.
Alvin Green was receiving § 34 weekly temporary total incapacity benefits for his accepted December 17, 1993 back injury when the insurer filed a complaint for discontinuance or modification of benefits. A § 10A conference was held after which the judge issued an order permitting the insurer to terminate § 34 benefits and commence § 35 weekly benefits for temporary partial incapacity with an assigned earning capacity of $175.00 as of January 25, 1996. Both parties appealed to a full evidentiary hearing but the insurer later withdrew its appeal. (Dec. 2, 3.)
A hearing proceeded on the employee's appeal. Mr. Green claimed entitlement to § 34 benefits from January 25, 1996 as well as §§ 13 and 30 medical benefits. (Dec. 3.) The judge subsequently issued a decision on November 28, 1997 awarding § 35 benefits as of December 20, 1996, based on an earning capacity of $190.00 per week. He also awarded the employee's attorney a fee pursuant to § 13A(5). (Dec. 14.) The fee award is the sole basis for the insurer's appeal to the reviewing board.
Section 13A(5) of the Act states in pertinent part:
Whenever an insurer files a complaint . . . and then . . . the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney. . . .
Pursuant to § 5 of the Act, the Department promulgated a regulation clarifying the meaning of prevail. That regulation, 452 CMR 1.19(4), effective January 10, 1997, states:
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, 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[.] (emphasis supplied).
Here, the January 25, 1996 conference order awarded § 35 benefits based on a $175.00 weekly earning capacity. The employee's appeal of that order gave rise to the hearing. The hearing decision maintained the conference-ordered § 35 benefits for an additional eleven months and then reduced those benefits by increasing the weekly earning capacity to $190.00. Because Mr. Green's appeal did not result in increased benefits, he did not prevail for the purposes of § 13A and, therefore, his attorney was not due a fee. The award of a fee payable to the employee's attorney is hereby reversed.
So ordered.
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
FILED: November 23, 1998