Decision

Decision  Mary Conroy v. Norwood Hospital

Date: 05/23/2000
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 009714-93
Location: Boston
  • Employee: Mary Conroy
  • Employer: Norwood Hospital
  • Self Insurer: Norwood Hospital

CARROLL, J. The self-insurer appeals from a decision after recommittal in which an administrative judge reiterated his award of a §13A(5)1 attorney’s fee for the employee’s prevailing at a prior hearing. The judge had terminated the employee’s weekly benefits as a result of that hearing. However, the termination of benefits was effective only as of the date of the impartial medical examination, leaving intact those benefits that had been paid during the period in dispute from the self-insurer’s filing of its complaint for modification or termination, until the §11A medical examination. See Cubellis v. Mozzarella House, 9 Mass. Workers’ Comp. Rep. 354, 356 (1995)(judge may terminate weekly benefits as early as the filing of the insurer’s complaint for such relief, but no earlier). Addressing the self-insurer’s earlier appeal from that initial award of an attorney’s fee, the reviewing board analyzed the issue in terms of the self-insurer’s potential right to recoup benefits paid pursuant to a §10A conference order under §11D(3)2:

[C]onference and hearing proceedings are "separate and distinct." Karamanos v. J.K. Luncheonette, 5 Mass. Workers’ Comp. Rep. 405, 407 (1991). The hearing is de novo "where issues are raised anew." Id.

With the lines of demarcation between the informal conference and the de novo evidentiary hearing clearly drawn, a long line of cases have since held that findings commencing, modifying or terminating benefits in hearing decisions must be "anchored in the evidence." [Citations omitted.] Thus, it is not only the conference-based temporary order of payment, but also the positions taken by the parties at the de novo hearing itself, which require the disputed period [of incapacity] to be delineated. What an employee stands to win or lose [by way of a claim for recoupment] in the hearing is the touchstone of whether the employee has "prevailed" for the purposes of a fee award under §13A . . . .

A partial success by the employee at hearing will support an award of a counsel fee. See Connolly’s Case, [41 Mass. App. Ct. 35, 37 (1996).]

                                                                         . . .

[W]e hold that if an employee retains any of the compensation ordered [at the conference proceeding], she is entitled to a fee.

Unfortunately, the decision does not identify what the period in dispute was and whether the employee actually retained any benefits that were disputed. As such, we cannot determine whether the legal requirements of §13A(6)[sic] have been met.

We, therefore, deem it appropriate to recommit this case for further findings consistent herewith.

Conroy v. Norwood Hospital, 11 Mass. Workers’ Comp. Rep. 487, 490-491 (1997).

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1 General Laws c. 152, §13A(5), as amended by St. 1991, c. 398, §35, reads:

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 in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.

2 General Laws c. 152, §11D(3), as inserted by St. 1991, c. 398, §32, reads:

An insurer that has paid compensation pursuant to a conference order, shall, upon receipt of a decision of an administrative judge or a court of the commonwealth which indicates that overpayments have been made be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee. Where overpayments have been made that cannot be recovered in this manner, recoupment may be ordered pursuant to the filing of a complaint pursuant to section ten or by bringing an action against the employee in superior court.

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