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Decision James Brown v. Department of Youth Services

Date: 03/04/2010
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 032922-05
Location: Boston
Referenced Sources: Gary Poulton, James N. Ellis, Esq. (3rd party) v. D. R. Billings, Inc.
  • Employee: James Brown
  • Employer: Department of Youth Services
  • Self Insurer: Commonwealth of Massachusetts

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). 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.

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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 for withdraws its own complaint within five days of he date set for a hearing . . . the insurer shall pay a fee to the employee's attorney . . . ." (Emphasis added.)