Decision  Bruce Spaniol v. Fairview Commons

Date:	01/04/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 042033-03
Location:	Boston

• Employee: Bruce Spaniol
• Employer: Fairview Commons
• Insurer: A.I.M. Mutual Ins. Co.

KOZIOL, J. The parties cross-appeal from a decision ordering the insurer to reimburse the employee $1,672.60, or 22% of an award of § 36 permanent loss of function benefits it withheld pursuant to13A(10) and 452 Code Mass. Regs. § 1.02,¹ and denying the employee's claim for penalties pursuant to §§ 8 and 14. Because the judge erred in ordering the insurer to reimburse the employee, we reverse the decision in part and vacate the reimbursement award.²

¹  General Laws c. 152, § 13A(10), states in relevant part:

In any instance in which an attorney's fee under subsection (1) to (6), inclusive, is due as a result of a cash award being made to the employee either voluntarily, or pursuant to an order or decision, the insurer may reduce the amount payable to the employee within the first month from the date of the voluntary payment order or decision, by the amount owed the claimant's attorney; provided, however, that the amount paid to the employee shall not be reduced to a sum less than seventy-eight percent of what the employee would have received within that month if no attorney's fee were payable.

452 Code Mass. Regs. § 1.02, states in relevant part:

Cash Award as used in M.G.L. c. 152, § 13A(10), shall mean any specific compensation benefits payable under M.G.L. c. 152,  § 36 or  § 36A and any weekly benefits payable under M.G.L. c. 152 of an amount that exceeds the weekly amount being paid the employee for the week immediately prior to the date of he voluntary payment, order or decision.