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Decision Joel Edwards, James N. Ellis, Esq. v. Buxton Acquisition Co., LLC

Date: 06/08/2010
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 024470-05
Location: Boston
Referenced Sources: Gary Poulton, James N. Ellis, Esq. (3rd party) v. D. R. Billings, Inc.
  • Third-party Claimant: James N. Ellis, Esq.
  • Employer: Buxton Aquisitions Co., LLC
  • Insurer: American Home Assurance

KOZIOL, J. The third party claimant appeals from the judge's decision denying his claim for a § 13A(5) attorney's fee. The insurer argues that its offer to accept the employee's underlying claim was not within the five day period prior to the scheduled hearing date, and thus, no fee is due. 1 Following our recent decision in Poulton v. D.R. Billings, Inc., 24 Mass. Workers' Comp. Rep.___ (2010), we reverse the decision and recommit the case for further findings.

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1 General Laws c. 152, § 13A(5), provides, in pertinent part:

Whenever an insurer. .. contests a claim for benefits and then ... accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven ... the insurer shall pay a fee to the employee's attorney ....