Decision  Stanley Kowalczyk v. Morgan Construction Co.

Date:	09/17/1999
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 077799-91
Location:	Boston

• Employee: Stanley Kowalczyk
• Employer: Morgan Construction Co.
• Insurer: Liberty Mutual Insurance Co.

MCCARTHY, J. Stanley Kowalczyk filed a claim for payment under § 36 of the Act for loss of function of the low back. The insurer resisted the claim denying, among other things, that the employee suffered a back injury arising out of and in the course of his employment. After a conference on the claim held under § 10A of the Act, the assigned administrative judge denied the claim. The employee filed a timely appeal. Because this was a case involving a dispute over a medical issue, the appealing party was obliged to pay a fee to defray the cost of the impartial medical examination required by § 11A:

When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to § 10A . . . [t]he insurer or any claimant represented by counsel who files such an appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the [impartial] medical examination under this section within ten days of filing said appeal. . . ."¹

Notwithstanding the failure to perfect the appeal, the case was assigned back to the same administrative judge for a hearing under § 11. The administrative judge rejected the insurer’s argument that he lacked jurisdiction to hold a hearing and, on July 7, 1998, filed a hearing decision in which he found that the employee had not submitted the requisite $350.00 appeal fee and thus had not perfected his appeal. The judge went on to order that the claim be dismissed without prejudice and pointed out that Kowalczyk could refile the claim if he so desired. We have the case on the insurer’s appeal from that decision.  

¹ Rather than the state average weekly wage on the date the appeal is filed, the appeal fee established by the department is now set at $350.00. The employee did not pay the required fee and his petition to enlarge the time to submit the fee was denied. As the fee was not paid, no § 11A impartial medical examination was scheduled.