Opinion
11-P-1267
04-20-2012
JENNY DEROSIERS'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jenny Derosiers (employee) appeals from a decision of the reviewing board (board) of the Department of Industrial Accidents (department) affirming an administrative judge's decision awarding G. L. c. 152, § 36 (§ 36), loss of function benefits to the employee, authorizing recoupment of overpayments from the employee, and denying the employee's claim for attorney's fees. The sole issue on appeal is the denial of fees. We affirm.
Facts. The employee suffered an accepted industrial injury in 2005. As a result of various events not relevant here, the employee received benefits in excess of her entitlement.
In 2007 the employee returned to work. Although she notified her attorney that she had done so, she did not so notify her insurer, nor did her attorney advise her that it was her obligation under G. L. c. 152, § 11D(1), to do so. The insurer brought a claim of recoupment under § 11D(3) for the resulting overpayment, together with the previous overpayment. For her part, the employee brought a § 36 claim for permanent loss of function benefits, and the two claims were joined. Both parties' claims were denied at a conference and a de novo hearing was scheduled. Prior to the hearing, the insurer made an offer, by letter, of $1,791.62 in settlement of the § 36 claim, the amount to be offset against the total overpayment of $11,062.05. The employee's attorney rejected the offer and made a counteroffer. He suggested that the $1,791.62 be set off against the overpayment 'for now,' thus leaving the issue of the contested § 36 benefits for the administrative judge, and asked for a reduced hearing fee of $2,000 and costs of $1,150.
The administrative judge awarded § 36 benefits in the amount offered by the insurer, and awarded recoupment of the overpayment in the full amount requested by the insurer. The two amounts were not set off against each other in a final accounting, meaning that the employee received her § 36 payment of $1,791.62 as a lump sum. The administrative judge further ordered that Derosiers repay the overpayment in monthly installments of $150, rather than a single lump sum payment, and denied fees.
Discussion. The sole issue in this case is whether the employee is entitled to attorney's fees as a prevailing party pursuant to G. L. c. 152, § 13A(5). We accord deference to an administrative agency's interpretation of a statute committed to its charge, see Mugford's Case, 45 Mass. App. Ct. 928, 930 (1998); Conte v. P.A.N. Constr. Co., 51 Mass. App. Ct. 398, 402 (2001), giving 'due weight to the experience, technical competence and specialized knowledge of the [department], as well as to the discretionary authority conferred upon it.' Murphy's Case, 53 Mass. App. Ct. 424, 427 (2001), quoting from G. L. c. 30A, § 14, as amended by St. 1973, c. 1114, § 3. 1. The § 36 claim. The department's regulations define a prevailing party for purposes of a § 36 claim.
'When an insurer . . . at least five days before a hearing, serves on a claimant . . . a written offer to pay . . . compensation under M.G.L. c. 152, §§ 30 or 36, and such offer is not accepted, the insurer shall not be required to pay any fee under M.G.L. c. 152, § 13A, for such . . . hearing, unless the order or decision rendered directs a payment of said . . . compensation in excess of that offered.'
452 Code Mass. Regs. § 1.19(3)(2008). Here, the insurer made an offer to pay $1,791.62 in § 36 benefits as an offset to the overpayment. The employee's attorney counteroffered as to fees and costs, but agreed to the offset. The insurer's obligation to pay § 36 benefits did not exceed what it had offered or what the employee demanded. The fact that the administrative judge ordered direct payment to the employee did not alter the liability of the insurer, nor on this record can we say that it was the product of any action by the employee or her counsel. The board's determination that the 'time value of money' did not come within the meaning of the regulation, in these factual circumstances, was not arbitrary, capricious, or contrary to law. See DiFronzo's Case, 459 Mass. 338, 341 (2011).
2. Recoupment. An employee prevails if he or she 'succeeds on any significant litigation issue, achieving 'some of the benefit' sought in the controversy.' Green's Case, 52 Mass. App. Ct. 141, 143 (2001), quoting from Connolly's Case, 41 Mass. App. Ct. 35, 38 (1996). Here, the employer prevailed in its recoupment action. Compare Connolly's Case, supra at 37-38 (successful representation of employee prevented recoupment claim); Richard's Case, 62 Mass. App. Ct. 701, 705-706 (2004) (fees awarded to employee for successful defense of fraud claim, which forestalled recoupment and criminal action). The record does not reflect that the employee sought time payments, or that the insurer opposed time payments, or that the employee succeeded with respect to a 'significant litigation issue.' The employee's hearing memorandum simply requested that the administrative judge 'deny recoupment,' and the issue at hearing was the employee's opposition to recoupment. On this point, the employee lost. The 'reviewing board's interpretation of the statute is entitled to our deference.' Alves's Case, 451 Mass. 171, 175 (2008), quoting from McCarty's Case , 445 Mass. 361, 367 (2005).
Decision of reviewing board affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),