Decision  James White v. Continental Construction, Inc.

Date:	06/26/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 027425-96
Location:	Boston
Referenced Sources:	Candice Lockheart v. Wakefield Engineering Walter Paschal v. Lechmere Co.

• Employee: James White
• Employer: Continental Construction, Inc.
• Insurer: Travelers Property Casualty Corporation

COSTIGAN, J. The parties cross-appeal from a decision which denied the employee’s claim for G. L. c. 152, § 34A, permanent and total incapacity benefits, but awarded § 35 temporary partial incapacity benefits to the employee and a legal fee to his attorney. Finding no merit in the employee’s arguments, we affirm the administrative judge’s finding that the employee, age thirty-seven at the time of the hearing and a carpenter by trade, was physically and vocationally capable of performing sedentary work within the restrictions identified by the medical experts whose opinions the judge adopted - - the § 11A impartial medical examiner and the insurer’s medical expert. However, we reverse the award of a § 13A attorney’s fee as the employee did not "prevail" at hearing, as defined by law. See G. L. c. 152, § 13A(5),¹ and 452 Code Mass. Regs. § 1.19(4).²

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 pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee’s attorney . . . plus necessary expenses.

(Emphasis added.)

² The adjudicatory rule provides:

In any proceeding before the Division of Dispute Resolution, the claimant shall be deemed to have prevailed, for the purposes of M. G. L. c. 152, § 13A, when compensation is ordered or is not discontinued at such proceeding, except where the claimant has appealed a conference order for which there is no pending appeal from the insurer and the decision of the administrative judge does not direct a payment of weekly or other compensation benefits exceeding that being paid by the insurer prior to such decision.

(Emphasis added.)