Opinion
No. 11–P–1680.
2012-06-21
Randall PERRY'S Case.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee is seeking attorney's fees and costs pursuant to G.L. c. 152, § 13A(5).
The basic premise of the employee's claim is that the insurer did not make an offer to settle until after the originally scheduled hearing date. The employee's argument is off the mark.
.General Laws c. 152, § 13A(5), as appearing in St.1991, c. 398, § 35, in relevant part, provides, “Whenever an insurer ... contests a claim for benefits and then ... accepts the employee's claim ... within five days of the date set for a hearing pursuant to section eleven ... the insurer shall pay a fee to the employee's attorney ... plus necessary expenses.”
Upon receipt of the impartial medical examiner's report, the insurer made an offer to settle. Seven months later, the day before the rescheduled hearing, the employee accepted the insurer's offer and the matter was dismissed.
The board could (as it did) properly “affirm the [administrative] judge's decision to deny the attorney's fees and expenses claimed.” The hearing on the employee's G.L. c. 152, § 36, claim did not take place until seven months after the insurer communicated its offer to pay. As there was no order or decision awarding G.L. c. 152, § 36, benefits in excess of the amount of the insurer's offer to pay, no attorney's fees and costs were accordingly due.
Decision of reviewing board affirmed.