Employee: James W. Tavano
Employer: Rosewood Management Associates
Insurer: Travelers Indemnity Co. of Connecticut
Board No.: 030995-03

(Judges Costigan, Horan and Fabricant)

John F. Trefethen, Jr., Esq., for the employee at hearing
James N. Ellis, Esq., for the employee on appeal
Nicole M. Edmonds, Esq., for the insurer

COSTIGAN, J. The employee and the insurer cross-appeal from an administrative judge's decision awarding the employee § 34 total incapacity benefits for a nine-month closed period ending on April 11, 2005, [1]but denying the insurer recoupment of the overpayment resulting from that decision. The employee argues that the judge erred in denying his motion for additional medical evidence, based on the alleged inadequacy of the § 11A impartial medical report and/or the complexity of the medical issues. We summarily affirm the judge's decision as to the employee's appeal.

The insurer takes issue with the judge's declaration, "I specifically do not order recoupment." (Dec. 13.) It suggests that what the judge meant by that statement is unclear, [2] but if it was to affirmatively deny the insurer's right to recoup weekly § 34 total incapacity benefits it paid after April 11, 2005, pursuant to the § 10A conference order which denied its complaint for modification or discontinuance of weekly compensation, [3]then the judge erred by deciding an issue that was not before him at hearing. We agree.

General Laws c. 152, § 11D(3), specifically addresses the issue of recoupment where, as here, benefits are ordered at the § 10A conference, but later reduced or denied by a hearing or appellate decision:

An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.

(Emphasis added.) No complaint for recoupment had yet been filed by the insurer, for the simple reason that no overpayment existed until the decision was filed. Therefore, the judge had no authority to address the issue of recoupment. Hover v. Northern Foundations, Inc., 22 Mass. Workers' Comp. Rep. 123, 124 (2008), citing Halama v. Mestek, Inc., 17 Mass. Workers' Comp. Rep. 245, 247 (2003)(error for judge to award § 34A benefits not claimed); Medley v. E.F. Hauserman Co., 14 Mass. Workers' Comp. Rep. 327 (2000)(same).

Accordingly, we vacate so much of the judge's decision as denies recoupment by the insurer of the overpayment resulting from the hearing decision, and we reserve the insurer's right to file a complaint for recoupment with the department or in the superior court. In all other respects, the decision is affirmed.

So ordered.

Patricia A. Costigan
Administrative Law Judge

Mark D. Horan
Administrative Law Judge

Bernard W. Fabricant
Administrative Law Judge

Filed: October 22, 2008

[1] The employee, a maintenance technician, injured his neck, low back, left shoulder and left buttock when he fell from a ladder at work on September 23, 2003. (Dec. 6.) The insurer accepted liability and placed the employee on § 34 benefits. At hearing, it disputed disability, extent thereof, and causal relationship. It also raised the affirmative defense of § 1(7A), arguing that the industrial injury no longer remained "a major" cause of the employee's disability. (Dec. 3.) The judge adopted the opinion of Dr. Michelle Masi, the impartial physician, that as of the April 11, 2005 date of her examination, the employee's work-related "resolving soft tissue" injury was not the cause of his ongoing partial disability, and "certainly not the major cause of his disability with respect to § 1(7)(a) [sic] of the statute." (Dec. 11.)

[2] The insurer suggests the judge may have meant he was simply declining to address the recoupment issue. However, because the judge did not award ongoing weekly benefits, he was not required, under the provisions of 452 Code Mass. Regs. § 1.24, to address recoupment:

Where an employee is receiving weekly benefits by agreement or by an order or decision, and a subsequent order or decision filed pursuant to M. G. L. c. 152 authorizes retroactive reduction of the weekly compensation rate , but does not terminate weekly benefits, the order or decision shall specifically address the manner or method of recoupment of such overpayment by the insurer.

(Emphasis added.)

[3] We take judicial notice of that conference order in the board file. Rizzo v. M.B.T.A., 16 Mass. Workers' Comp. Rep. 160, 161 n.3 (2002).