Employee: Martha Flores
Employer: Italian Home for Children, Inc
Insurer: Travelers Indemnity Co.
Board No.: 033502-03

(Judge Horan, Costigan and Fabricant)

Robert L. Noa, Esq., for the employee at hearing
James N. Ellis, Esq., for the employee on appeal
Jonathan Harris, Esq., for the employee on brief
Marianne Swenson, Esq., for the insurer

HORAN, J. The employee appeals from a decision denying and dismissing her claim for further § 34 benefits for an accepted work-related back injury. She contends, inter alia, that because she prevailed on the issue of average weekly wage, an attorney's fee is due pursuant to § 13A(5). We disagree, and affirm the decision. [1]

Following the employee's September 9, 2003 injury, the insurer paid § 34 benefits "for various closed periods." (Dec. 4.) The employee filed a claim, which the judge denied at conference. (Dec. 2.) The employee appealed.

At the hearing, the parties stipulated that the insurer had accepted liability for the injury, and had paid the employee § 34 benefits as set forth in the insurer's hearing memorandum. (Tr. 4-5, Ins. Ex. 1.) That memorandum shows that § 34 benefits were paid for the employee's incapacity prior to July 2, 2004. (Ins. Ex. 1, p. 2.) The employee claimed further compensation from July 2, 2004, only. (Dec. 3-4; Employee Ex. 2.) The insurer denied the employee was entitled to additional incapacity benefits. The insurer also maintained the employee's average weekly wage was $205.82, while the employee contended it was $326.25. (Dec. 4.) The difference was based on the employee's change from part time to full time work three months before her injury, with $326.25 representing full time earnings. (Dec. 5, 7.)

The judge found the employee's average weekly wage on the date of injury was $326.25. However, the judge denied the employee's claim for benefits, finding that as of July 2, 2004, she had no loss of earning capacity as a result of her injury. (Dec. 7-8.) The employee claims the judge erred by failing to award an attorney's fee. She posits a fee is due because she prevailed on the issue of average weekly wage. Ordinarily, such a finding would support the conclusion that the employee prevailed on a "significant issue" in dispute, which in turn would generate an attorney's fee award. G. L. c. 152, § 13A(5); see Connelly's Case, 41 Mass. App. Ct. 35, 38 (1996); Badea v. Hasbro, Inc., 22 Mass. Workers' Comp. Rep. 73 (2008). We say ordinarily, because such a finding does not, ipso facto, establish entitlement to an attorney's fee. Such is the case here, as the judge's average weekly wage finding did not produce an increase in the employee's compensation rate for the period claimed; at hearing, the employee failed to seek a retroactive adjustment of the compensation voluntarily paid for the period prior to July 2, 2004. [2] Cf. Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 77, 79 (1994)("Where there is no claim and, therefore, no dispute, we conclude that the judge strayed from the parameters of the case and erred in making findings on issues not properly before [him]."). That the employee might benefit from the judge's average weekly determination in the future does not support the award of an attorney's fee. [3] See Gonzalez's Case, 41 Mass. App. Ct. 39 (1996)(finding of liability in favor of employee, absent order of payment of compensation, is not "prevailing" under § 13A[5]). We see nothing to distinguish this case from Gonzalez in that regard.

The decision is affirmed.

So ordered.

Mark D. Horan
Administrative Law Judge

Patricia A. Costigan
Administrative Law Judge

Bernard W. Fabricant
Administrative Law Judge

Filed: October 22, 2008

[1] We summarily affirm the decision on all other issues raised by the employee on appeal.

[2] We note that only the employee appealed the conference order; the insurer did not take any action placing any benefits previously paid to the employee in jeopardy. Cf. Cruz's Case, 51 Mass. App. Ct. 26 (2001)(fee due where insurer appealed, placing in jeopardy the award of benefits to the employee at conference); Connelly, supra (fee due where insurer's appeal in liability case opened door to possible § 11D recoupment claim for benefits paid under conference order); Guinta v. Unifirst Corp., 22 Mass. Workers' Comp. Rep. 137 (2008).

[3] Should the employee file a claim to address the upward adjustment of her compensation rate for the period prior to July 2, 2004, the insurer could avoid payment of an attorney's fee by paying the claim within twenty-one days of its receipt. G. L. c. 152, § 13A(1).