Opinion
BOARD No. 069547-91
Filed: September 10, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Lazar Lowinger, Esq,. for the employee.
Clyde B. Kelton, Jr., Esq., for the insurer.
Iris Vera appeals the decision of an administrative judge dismissing her claim for benefits because she failed to pay the impartial examination fee required by G.L. c. 152, § 11A. We reverse the denial and dismissal of the claim and return the file to the senior judge for proceedings consistent with this opinion.
On January 16, 1992, the employee filed a claim for workers' compensation benefits. The employee's claim was denied following a conference on October 20, 1992. The employee timely appealed for a hearing de novo. On January 15, 1993, the employee petitioned for a waiver of the impartial examination fee, alleging in substance that she was indigent. On January 27, 1993, the commissioner granted an enlargement of ninety days for the submission of the fee. On April 27, 1994, the employee filed a motion to enlarge time and to waive the fee. These motions were denied by the commissioner on May 12, 1994. On May 20, 1994, the employee filed with the department a check for the impartial medical examination, but on May 26, 1994, the commissioner denied the employee's petition and returned the check. (Dec. 4-5.) On June 10, 1994, the judge denied and dismissed the employee's claim essentially because the employee, having failed to avoid payment of the requisite fee, was not able to submit any medical evidence in support of her claim. Id. 9-10.
In Neff v. Commissioner of the Dep't of Indus. Accidents, 421 Mass. 70 (1995) (Neff I), the Supreme Judicial Court held that the workers' compensation act implicitly permits the commissioner to grant a waiver to indigent claimants, even those represented by attorneys, of the impartial medical examination fee. Subsequently, in Neff II, No. S.J. 94-0277, a Declaratory Judgment after Rescript (December 13, 1995), the court ordered the commissioner to act on waiver requests within sixty days and, if denied, to render reasons for determination in writing. In response to the court's directive, on January 26, 1996, the commissioner adopted an emergency regulation to effectuate indigency waivers of the impartial examination fee, amending 452 CMR 1.02 and 1.11. On April 26, 1996, the emergency regulation was replaced by Circular Letter No. 282, which contained essentially the same procedures as the emergency regulation.
In light of these developments, we think that the employee should have the opportunity to file the newly established forms to pursue her request of an indigency waiver of the impartial fee or to file the fee. See Patel v. Hooter Baldwan Misurment, 7 Mass. Workers' Comp. Rep. 167 (1993). We therefore vacate the dismissal of the employee's claim and return the case to the senior judge for further proceedings consistent with the previously cited cases and circular letter.
So ordered.
__________________________ Frederick E. Levine Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
__________________________ Carolynn N. Fischel Administrative Law Judge
FEL/kai
Filed: September 10, 1997