Decision  Randall Perry v. Chaves Heating & Air Conditioning

Date:	08/15/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 035598-05
Location:	Boston

• Employee: Randall Perry
• Employer: Chaves Heating & Air Conditioning
• Insurer: Travelers Property & Casualty Insurance Co.

HORAN, J. The employee¹ appeals from a decision denying his claim for § 13A(5)²  attorney's fees and expenses. We affirm the decision in part, and reverse in part.

¹ On April 17, 2009, the department received the claim in this matter. It was filed by James Ellis (on a Form 115) as a third party claim for attorney’s fees and costs, and for penalties under § 14. At the hearing, Teresa Brooks Benoit appeared for the employee (Tr. 3); no appearance was entered on behalf of James Ellis. The hearing decision was appealed by the employee on January 7, 2011. Nevertheless, the hearing decision describes the issue sub judice as the third party claim of employee’s counsel for attorney’s fees and costs, and the parties tried this issue by consent. The decision does not identify § 14 as an issue in dispute, nor is it an issue on appeal.

² 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 . . . 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 . . . plus necessary expenses.