Decision  Nelson Morillo v. Marcor Holdings, Inc.

Date:	09/09/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 040850-03
Location:	Boston

• Employee: Nelson Morillo
• Employer: Marcor Holdings, Inc.
• Insurer: Zurich North America Insurance Co.

FABRICANT, J. The employee appeals from a decision in which the administrative judge denied the employee's claim for a closed period of partial incapacity benefits, and imposed § 14(2) fraud sanctions against the employee.¹ The sole argument on appeal is that the judge erred by failing to award employee's counsel a § 13A(5) fee for prevailing at the hearing.² We agree.

¹ General Laws c. 152, § 14(2), provides, in part:

If it is determined that in any proceeding within the division of dispute resolution, a party, including an attorney or expert medical witness acting on behalf of an employee or insurer, concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly used perjured testimony or false evidence, knowingly made a false statement of fact or law, participated in the creation or presentation of evidence which he knows to be false, or otherwise engaged in conduct that such party knew to be illegal or fraudulent, the party's conduct shall be reported to the general counsel of the insurance fraud bureau. Notwithstanding any action the insurance fraud bureau may take, the party shall be assessed, in addition to the whole costs of such proceedings and attorneys' fees, a penalty payable to the aggrieved insurer or employee, in an amount not less than the average weekly wage in the commonwealth multiplied by six.

² General Laws c. 152, § 13A(5), provides, in pertinent part:

Whenever . . . the employee prevails at [a] hearing [pursuant to section eleven] the insurer shall pay a fee to the employee's attorney . . . .