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Claimant’s Attorney Ordered to Pay Costs After Filing Second Massachusetts Workers’ Compensation Claim Without Reasonable Grounds

It is vital to engage the right advocate when pursing a Massachusetts workers’ compensation claim. In In Re Rivera’s Case, a Massachusetts woman hurt her back in a 2003 workplace accident. As a result, the worker received partial disability benefits from May 2005 through September 2005, when her benefits were terminated. At the time of termination, an administrative judge adopted the opinion of a neutral medical examiner and found that there was no longer a causal connection between the worker’s ongoing back pain and her work accident.

About three years later, the worker sought § 36 loss of function workers’ compensation benefits. In her claim, the employee relied on the independent medical opinion of a physician who evaluated her in March 2008. Following a conference on the matter, an administrative judge denied the employee’s claim. The worker next appealed the judge’s order. As part of her appeal, her attorney apparently stated both parties agreed to opt out of a required § 11A impartial medical examination. In response, the worker’s employer promptly disputed the lawyer’s claim and stated the conference order did not indicate such an agreement occurred.

Next, the employee’s counsel sought to opt out of the neutral medical examination. As part of the worker’s motion, she asserted that such an exam was not required because there was no medical evidence in dispute, since the administrative judge relied on a medical report that only addressed the employee’s disability. According to the worker, the medical evidence offered failed to address the woman’s loss of function. Ultimately, the judge denied the worker’s motion. Soon after, the employee’s lawyer again argued that a § 11A medical examination was not required and notified the administrative judge that the worker was unwilling to pay for such an exam.

In late 2009, the employee requested a full hearing on her claim without a § 11A impartial medical examination. The worker’s hearing was denied because she failed to satisfy the opt out procedures enumerated in 452 Code Mass. Regs. § 1.10(9). Instead, the worker was notified that she may file a late fee in order to participate in an impartial medical exam and perfect her appeal. The worker was also told that her claim would be administratively withdrawn if she failed to do so.

After the employee’s claim was procedurally dismissed, her attorney filed an objection. In June 2010, the worker was informed that her claim required a filing fee because it involved medical issues. More than one year later, the employee filed an identical § 36(1)(j) claim. The worker also filed a § 14 claim asserting her employer should pay all costs because the employer defended against her claim without reasonable grounds. Once again, the woman’s attorney argued that no § 11A exam was required.

Following a conference, the administrative judge denied the worker’s claim and stated the woman must be examined by an impartial doctor because a medical dispute existed. The judge also stated she would reserve the employee’s § 14 claim for hearing. The worker’s lawyer unsuccessfully appealed the conference order and filed another motion to opt out of the exam. After the worker’s motion was denied, the employee made no further attempts to preserve her rights on appeal.

In November 2012, the administrative judge determined the woman’s second § 36(1)(j) claim was filed without reasonable grounds. In addition, the judge assessed all costs to the employee’s attorney and said he violated § 14(1) when he failed to comply with the administrative judge’s § 11A rulings. The Department of Industrial Accidents Reviewing Board affirmed the judge’s order, and the worker filed an appeal with the Appeals Court of Massachusetts.

On appeal, the court first stated the worker failed to preserve her claim, and the only issue before the appellate court was the § 14(1) penalties assessed against her lawyer. Next, the court said it was required to give great weight to the Massachusetts agency’s interpretation of its own rule and would only overturn its decision if it was erroneous under Massachusetts law. The court then turned to the facts of the case.

The Appeals Court stated the attorney’s claim that there was no medical issue in dispute in the underlying workers’ compensation case lacked merit. The court said the lawyer’s argument to the contrary misconstrued the law and held the worker’s claim was entirely “related to her alleged permanent loss of function from a back injury (which is a medical issue).” The court also found it significant that the administrative judge’s 2008 conference order stated a § 11A medical examination was required. Because of this, the court said an impartial medical exam and filing fee were required in order to appeal the judge’s order.

The appellate court next stated the agency had the authority to administratively withdraw the worker’s claim under § 10A(3) because she failed to pay the required administrative fee and submit to a § 11A exam. Since the employee’s request was related to a medical issue and the worker did not timely perfect her appeal, the court found that the administrative judge’s 2008 decision denying her § 36 benefits request was binding and precluded additional litigation on the matter.

After dismissing the lawyer’s claim that an administrative withdrawal of a workers’ compensation claim lacks preclusive effect, the Appeals Court of Massachusetts held that § 14(1) penalties were warranted in the case and affirmed the Department of Industrial Accidents Reviewing Board’s decision.

If you were injured at a Massachusetts workplace, you should discuss your right to recover financial compensation with the veteran workers’ compensation attorneys at Kantrovitz & Associates, P.C. Our hardworking lawyers are here to help you recover the benefits you may be entitled to following a back injuries or other harm. To speak with an experienced Massachusetts workers’ compensation advocate about your situation, give Kantrovitz & Associates, P.C. a call at 800-367-0871 or contact us online.

Additional Resources:

In Re Rivera’s Case, Mass: Appeals Court 2015

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