Employee: James Brown
Employer: Department of Youth Services
Self-insurer: Commonwealth of Massachusetts
Board No.: 032922-05


(Judges Costigan, Fabricant and Horan)
The case was heard by Administrative Judge Benoit.

Seth J. Elin, Esq., for the third party claimant
Arthur Jackson, Esq., for the self-insurer

COSTIGAN, J. The employee's attorney appeals from the administrative judge's denial of his third party claim for a fee under the provisions of G. L. c. 152, § 13A(5). [1] The only issue presented by this appeal is the meaning of the statutory phrase, "within five days," relative to an insurer's withdrawal of its appeal. The administrative judge did not have the benefit of our recent decision in Poulton v. D. R. Billings, Inc., 24 Mass. Workers' Comp. Rep. ___ (January 20, 2010), which governs the outcome here. Accordingly, we reverse the decision and recommit the case for further findings.

The self-insurer's complaint to modify or discontinue the employee's § 34 total incapacity benefits was denied following a § 10A conference, and the insurer appealed. In the course of the fee litigation, the parties stipulated the evidentiary hearing was scheduled on Tuesday, July 3, 2007, and the self-insurer withdrew its appeal of the conference order on Tuesday, June 26, 2007. (Dec. 1-2.) Thus, the question before the administrative judge was whether the phrase, "within five days," as appearing in § 13A(5), means "within five calendar days." (Dec. 1.) As the judge noted, if the intervening Saturday and Sunday, June 30 th and July 1 st, were excluded in the computation, the self-insurer's withdrawal would have occurred within five working days of the July 3 rd hearing, and a fee would be due employee's counsel. If, however, all calendar days were counted, the June 26th withdrawal was outside of five days prior to the hearing, and no fee was payable.

(Dec. 3.)

In Poulton, supra, we concluded "that the § 13A(5) five-day notice requirement should refer to working days rather than calendar days." Id. We reasoned:

We take guidance from the regulatory interpretation of the statute contained in 452 C.M.R. § 1.19(5), which provides that "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 M.G.L. c. 152, § 11." (Emphasis added.) We also consider that this interpretation is consistent with Massachusetts Rules of Civil Procedure 6(1), which provides "[w]hen the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."

Id. at ___.

The self-insurer argues the reference to "working days" in the regulation has no place in the analysis of the fee dispute in this case, because the withdrawal here was not "at or after the hearing." We disagree. The self-insurer offers no rationale, nor can we imagine any, that the use of the phrase, "working days," applies to withdrawals at or after the scheduled hearing, but not to withdrawals prior to the hearing. Indeed, in our view, the reference in the regulation to working days has meaning only in the context of counting the days between a withdrawal and the scheduled hearing date. The regulation merely clarifies that an insurer's withdrawal of an appeal "at or after the hearing" should be treated in the same manner as a withdrawal prior to the hearing: computation based on "working days" applies to all insurer appeal withdrawals attendant to scheduled hearings under § 11.

Accordingly, we reverse the denial of the § 13A(5) attorney's fee, and recommit the case for the judge to determine the appropriate amount of such fee, pursuant to his authority to "increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney."

So ordered.

Patricia A. Costigan
Administrative Law Judge

Mark D. Horan
Administrative Law Judge

Bernard W. Fabricant
Administrative Law Judge

Filed: March 4, 2010

[1] Section 13A(5) provides, in pertinent part: "Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing. . . the insurer shall pay a fee to the employee's attorney. . . ." (Emphasis added.)