(1) Where an attorney's fee is paid by the insurer pursuant to MGL c.152, § 13A, that shall be the only fee permitted and no additional fee shall be charged by the attorney for such services. When the employee's attorney and the insurer agree on a fee and expenses, such fee and expenses shall be deemed to be approved by the administrative judge or Reviewing Board as the case may be. When the employee's attorney and the insurer are unable to agree, the administrative judge or Reviewing Board to whom the case was assigned shall determine the appropriate fee pursuant to MGL c. 152, § 13A.
(2) An employee and his attorney may agree on a retainer, but only to pay for necessary and reasonable expenses and disbursements related to his representation. Any employee's attorney entitled to a fee paid by the insurer under MGL c. 152, § 13A, shall provide the administrative judge or Reviewing Board with an itemization of any necessary and reasonable expenditures and disbursements related to his services, including expenses and disbursements paid by the employee. The insurer shall reimburse the employee for any such expenses or disbursements approved by the administrative judge or the Reviewing Board.
(3) When an insurer, at least two days before a conference, or at least five days before a hearing, serves on a claimant or person receiving compensation or the representative of such claimant or person a written offer to pay weekly compensation or compensation under MGL c. 152, §§ 30 or 36, and such offer is not accepted, the insurer shall not be required to pay any fee under MGL c. 152, § 13A, for such conference or hearing, unless the order or decision rendered directs a payment of said weekly or other compensation in excess of that offered. Such an offer may be to pay weekly compensation in an amount less than the amount being paid at the time the offer is tendered provided that, if the compensation is being paid pursuant to MGL c. 152, § 8, and the insurer has a workers' compensation policy in effect for the policy year period in which the offer is made with the employer where the alleged injury occurred, then a wage statement signed by said employer indicating the average weekly wage at the time of such alleged injury shall be attached to the written offer of payment.
(4) In any proceeding before the Division of Dispute Resolution, the claimant shall be deemed to have prevailed, for the purposes of MGL c. 152, § 13A, when compensation is ordered or is not discontinued at such proceeding, 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; or
(5) For purposes of MGL c. 152, § 13A(5), withdrawal by an insurer at or after the hearing shall constitute withdrawal within five working days of the date set for a hearing pursuant to MGL c. 152, § 11. For purposes of MGL c. 152, § 13A(5), the employee shall be deemed to have prevailed when an insurer's § 14 fraud complaint is denied and dismissed. For purposes of MGL c. 152, § 13A(6), an employee shall be considered to have prevailed before the Reviewing Board if an insurer has withdrawn after an appeal for review has been filed under MGL c. 152, § 11C.
(6) Nothing in 452 CMR 1.19 shall affect fees paid to an attorney by an employee for services other than those rendered an employee under MGL c. 152.
(7) For the purpose of computing attorneys' fees under MGL c. 152, § 13A, and these rules, the average weekly wage in the Commonwealth shall be such wage on the date the order or decision is rendered, or the date the insurer accepts the claim or withdraws its request for modification or termination.
(8) For injuries occurring before November 1, 1986, fees of attorneys for representation of employees under MGL c. 152 shall be subject to the approval of an administrative judge or Reviewing Board. If the employee and attorney cannot agree as to the attorney's fee, either party may notify the Division of Dispute Resolution which shall assign the case for a conference and/or hearing.
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