Opinion
No. 11–P–417.
2012-10-29
Irani COSTA'S Case.
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Irani Costa appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) that affirmed an administrative judge's decision that Costa's average weekly wage, which formed the basis for her incapacity benefits, was $320. Costa's employer, Cleonilda Coogan, doing business as Brazilian Cleo Cleaning (Coogan), did not have the statutorily required workers' compensation insurance, thus the Workers' Compensation Trust Fund (fund), pursuant to its indemnification obligation, has filed an appearance in this case, but has not filed a brief. Costa and the fund now seek an expedited decision that grants the relief sought by Costa.
Background. While employed by Coogan, Costa suffered an injury to her hand. In July, 2007, Costa filed a claim with the board seeking to recover benefits from the fund. On December 1, 2009, after a hearing, an administrative judge determined that Costa sustained an injury while employed and that she was, and continues to be, temporarily totally disabled. The administrative judge ordered the fund to pay Costa incapacity benefits based upon her average weekly wage. The administrative judge found Costa to be a credible witness. However, despite Costa's assertion that her average weekly wage was $400, the administrative judge determined that, based upon the submission of checks issued after the date of Costa's injury, her average weekly wage was $320. On December 9, 2010, Costa appealed the administrative judge's decision to the board. On January 20, 2011, the board affirmed the administrative judge's decision. This appeal ensued.
Discussion. Costa and the fund have filed a joint motion for expedited decision. As noted, the fund has not filed a brief.
Rather, the fund, in the motion, consents to the relief sought by Costa, while reserving its right to contest Costa's fee petition. Since no party has filed a brief contesting the relief sought by Costa, and because the fund, which is responsible for paying the disability benefits, has expressly agreed to the relief sought by Costa, we conclude that Costa is entitled to benefits based upon an average weekly wage of $400. Therefore, we order that the board's decision be modified to include a finding that Costa's average weekly wage is $400.
Coogan has not filed a brief or a response to the joint motion filed by Costa and the fund.
Costa is entitled, under G.L. c. 152, § 12A, to her reasonable appellate attorney's fees and other necessary expenses. Daly's Case, 405 Mass. 33, 42 (1989). In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), within fourteen days of the date on which this memorandum is issued, Costa shall file with this court and serve on Coogan and the fund a motion for determination of appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. Within fourteen days thereafter, Coogan and the fund may file with this court and serve on Costa any opposition.
The decision of the reviewing board is modified to include a finding that the employee's average weekly wage is $400. As so modified, the decision is affirmed.