Opinion
BOARD No. 09387587
Filed: November 5, 1998
REVIEWING BOARD DECISION
(Judges Carroll, Levine and Maze-Rothstein)
APPEARANCES
James K. Meehan, Esq., for the employee.
Kerri Ann Morrissey, Esq., for the self-insurer.
The employee was receiving § 34 temporary total incapacity benefits on the self-insurer's voluntary resumption of such benefits for a January 15, 1987 shoulder injury, when the self-insurer filed a complaint to modify or discontinue weekly benefits. After a full evidentiary hearing, the judge ordered that § 34 benefits discontinue and § 35 benefits commence as of the date on which the self-insurer voluntarily placed the employee on § 34 benefits, November 6, 1995. The employee appeals the judge's decision on two grounds: (1) the discontinuance of § 34 benefits on a date preceding the date on which the self-insurer filed its complaint for discontinuance or modification, and (2) the failure to award an attorney's fee. We agree that the judge's modification of benefits to a date prior to the date of the self-insurer's complaint to modify benefits was an error, as was the failure to award an attorney's fee.
Mr. Stowe had a compensable shoulder injury while working for the MBTA on January 15, 1987. (Dec. 5.) He was out of work for two years during which time he received workers' compensation benefits. Id. After two surgeries, the employee returned to work on modified duty. (Dec. 5-6.) In August 1995, he injured his back at work and the MBTA paid § 34 benefits without prejudice. (Dec. 6.) On November 6, 1995, the self-insurer simultaneously stopped paying compensation benefits for the August 1995 back injury and voluntarily resumed payment of § 34 benefits for the 1987 shoulder injury. Id. On April 25, 1996, the self-insurer filed a complaint to modify or discontinue benefits. An amended conference order modified benefits. A hearing de novo was held on the self-insurer's appeal of the conference order.
The self-insurer and the employee both timely appealed but the employee did not perfect his appeal (Dec. 3; Tr. 4.); the employee did not pursue his appeal. (Tr. 4.)
In his hearing decision the judge ordered, in effect, discontinuance of § 34 benefits and commencement of § 35 benefits retroactive to November 6, 1995, the date on which the self-insurer voluntarily placed the employee on § 34 temporary total benefits for the 1987 shoulder injury. In doing so, the judge reasoned as follows:
If one were to read the "Wherefore It Is Ordered" portion of the judge's decision (Dec. 16) as it stands alone, one might assume this was the employee's claim rather than the insurer's complaint to discontinue or modify, because there are no words stating that the employee's § 34 benefits were being discontinued and that the employee's weekly benefits were being modified, but the effect of the judge's order of § 35 benefits is, indeed, to discontinue § 34 benefits and modify benfits by ordering commencement of § 35 benefits.
While it is the usual practice at the Department to use the date when a request for modification of benefits is filed as the earliest date on which to implement a retroactive modification, that approach would not necessarily result in a date that is grounded in the medical evidence in this matter. . . . [U]sing such a filing date would produce a result that is contrary to all the competent evidence.
(Dec. 10.)
While the judge recognized the Department's 'usual practice', he did not follow the law on which the practice is based. The law is set out in Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995).
If the medical evidence persuades the judge that disability ceased prior to the date the insurer filed its complaint to discontinue, the order of discontinuance may go back no further than the date the request was filed. See Welch v. A.B.F. Systems, [9 Mass. Workers' Comp. Rep. 407 (1995)]. This is a departure from our usual rule that a cessation date be grounded in the evidence, but is appropriate, as we view it to be consistent with principles of equity, Utica Mutual v. Liberty Mutual, 19 Mass. App. Ct. 262, 267 (1985), and the beneficent design of the Act. Young v. Duncan, 218 Mass. 346 (1914) Locke, 29 Massachusetts Practice, § 29 at pp. 33-34 (1981).
As we held in Cubellis, and reaffirmed in Picardi v. Bradlees, Inc., 11 Mass. Workers' Comp. Rep. 43, 44 (1997), the earliest date to which a discontinuance/modification order may be applied is the date on which the complaint for discontinuance/modification is filed. Cubellis stands for the proposition that until the moment of complaint the insurer's payments are either purely voluntary, or voluntary to the extent that payments are being made on the basis of some prior unchallenged order; therefore, until the insurer opposes continuing voluntary payments, by filing its complaint, there is no quarrel as to the employee's entitlement to weekly benefits.
It is undisputed that the insurer filed its complaint on April 25, 1996. (See Employee's Brief p. 2). We therefore reverse the judge's discontinuance of § 34 benefits as of November 6, 1995 and order that the discontinuance/modification be effective as of the filing date of the insurer's complaint, April 25, 1996.
The decision was silent as to the employee's entitlement to an attorney's fee. (Dec. 16.) We order payment of an attorney's fee of $4,110.30 to the employee's attorney where only the self-insurer appealed the conference order and the hearing decision ordered the payment of ongoing § 35 benefits on the insurer's discontinuance/modification request. Murphy v.TransWorld Airlines, 11 Mass. Workers' Comp. Rep. 94, 104 (1997). Since the employee's benefits were not discontinued at hearing, the employee has "prevailed" for purposes of G.L.c. 152, § 13A, and was thereby entitled to a fee. Columbo v. Persona Mgmt., 11 Mass. Workers' Comp. Rep. 459 (1997).
452 CMR 1.19(4) defines "prevails" as occurring
when compensation is ordered or is not discontinued at [a § 11 hearing], 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 . . . .
The exception does not apply to the facts of the case before us.
General Laws c. 152, § 13A(5), states in pertinent part:
Whenever an insurer files a complaint or contests a claim for benefits and then . . . the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney . . . .
We therefore order that modification be effective as of April 25, 1996, and that an attorney's fee be paid to the employee's counsel pursuant to G.L.c. 152, § 13A(5).
So ordered.
________________________ Martine Carroll Administrative Law Judge
________________________ Frederick E. Levine Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
FILED: November 5, 1998