Opinion
Board Number: 08327389
Filed: January 20, 1995
REVIEWING BOARD:
Judges McCarthy, Fischel, and Wilson.
APPEARANCES:
Salvatore J. Perra, Esq., for the employee.
Thomas P. O'Reilly, Esq., for the self-insurer; Paul M. Moretti, Esq., for the self-insurer on brief.
The employee, who injured her back on December 4, 1989 while lifting a case of baby formula, appeals from the decision of the administrative judge awarding her § 35 benefits for the closed period from April 17, 1991 to December 5, 1991 and denying payment of medical benefits after December 5, 1991.
After her industrial injury, the employee continued to work until May 1990 when she began receiving § 34 benefits. Following the self-insurer's request for discontinuance, an administrative judge awarded § 35 benefits from April 17, 1991 and assigned the employee an earning capacity of $100.00 per week. (Dec. 2.) Both parties appealed the order, and another administrative judge conducted a hearing on the issue of present incapacity. Based on the opinion of Dr. Hartunian, an orthopedic surgeon who examined the employee on behalf of the self-insurer, the judge found the employee capable of full-time work without restriction. (Dec. 5, 6.) The judge "decline[d] to order payment for medical benefits pursuant to § 13 and § 30 after December 5, 1991 based on Dr. Hartunian's report dated December 5, 1991." (Dec. 6, Order #4.) The judge further "decline[d] to award fees or costs to either party since no depositions were taken. . . ." (Dec. 7.)
The employee argues on appeal that the judge erred in terminating § 35 benefits and medical benefits as of December 5, 1991, the date of Dr. Hartunian's last medical report.
We see no error in the judge's adoption of the opinion contained in the December 5, 1991 medical report to support her cutoff of § 35 benefits. However, we find the termination of medical benefits after that date is error, and so we strike the order declining further payment. (Dec. 6, Order #4.) That order is too far reaching, because it fails to take into consideration the possibility of a change in the employee's medical picture down the road. Medical conditions are rarely static, and present lack of need for treatment does not presuppose there will be no future necessity for treatment. An employee who has suffered an industrial injury arising out of and in the course of employment is free at any time to file a claim for further medical benefits. Nelson v. Westinghouse Elevator Co., 8 Mass. Workers' Comp. Rep. 420 (1994).
The employee also argues that the judge erred in failing to award a fee to employee's counsel. There is no error because the employee did not prevail at hearing. Section 13A(5) provides that when an insurer "files a complaint or contests a claim for benefits" and the employee prevails at hearing, the insurer "shall pay a fee" to employee's counsel in the amount of $3,500.00 plus expenses, subject to an increase or decrease at the discretion of the administrative judge based on the complexity of the case or the effort expended by counsel. An employee "prevails" when compensation is ordered or is not discontinued. In this case, the judge retroactively terminated the employee's weekly § 35 compensation benefits as of December 5, 1991. Therefore, the employee did not prevail and no fee is due employee's counsel.
As stated before, both parties in this case appealed from the conference order.
Judges Fischel and Wilson concur.