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Massachusetts Reviewing Board Focuses on Fee Requirement for Impartial Medical Examination on Appeal, Precludes Claimant from Pursuing Medical Benefits

Massachusetts law requires that an impartial medical examiner examine the claimant when there is a dispute within a workers’ compensation claim over medical issues that serves as the subject of an appeal.   At the time of the appeal, the workers’ compensation claimant must submit payment of an average weekly wage in ordmedical examinationer to offset the cost of the examination.  Recently, a case before the Reviewing Board presented the issues of whether a medical dispute required an examination and whether the claimant’s failure to pay the appeal fee precluded his claim.

The facts of this case indicated that after suffering a work injury in 1991, the injured employee accepted his liability case for $145,000.  Eleven years later, in 2007, the employee filed a claim, and then when the claim was denied, he appealed the conference order denying the claim. He failed to pay the required appeal fee. Notice was sent to his attorney, but the fee was not paid. The case was administratively withdrawn.

The judge stated that the insurer had not waived the impartial medical examination.  The employee also filed a second and third claim, and eventually an administrative judge denied and dismissed his claim for medical benefits on the ground that the failure to pay the fee was an acceptance of the order.

The injured worker contended there had not been a medical dispute at issue at the 2007 conference, and therefore an impartial examination was not necessary according to Massachusetts law.  But the conference memorandum that had received signatures by both parties had an “X” near the box indicating whether an impartial exam would be needed.  And while the employee argued that the parties opted out of the examination, there was no form in the Board file.

The Board stated that the appropriate time for the employee to assert that an impartial medical examination was not required would have been at the conference.  Turning to legal precedent, the Board stated that an employee’s failure to timely pay the required appeal fee constitutes a failure to appeal. In that appellate decision, the workers’ compensation claim involved a medical issue, and the conference order did not state otherwise.  The court reiterated that when an employee fails to timely file the required fee, they are essentially failing to file a timely appeal. In other words, not paying the fee is the equivalent of accepting the order and findings.

Here, since the Board affirmed the administrative judge’s decision, the injured worker in this case was not able to pursue medical benefits.

The dedicated Massachusetts attorneys at Pulgini & Norton help injured workers pursue workers’ compensation benefits, including permanent total disability benefits and medical benefits. We can help you understand your legal rights and obligations. Contact (781) 843-2200 or complete our online form to discuss your claim with one of our experienced attorneys.

More Blog Posts:

Massachusetts Reviewing Board Applies Successive Insurance Rule, Finding Coverage for Employee’s Ongoing Work-Related Injuries, Massachusetts Workers’ Compensation Lawyer Blog, November 10, 2016

Reviewing Board Holds Massachusetts Worker Did Not Suffer Second Compensable Injury, and Insurer Responsible for Initial Injury Must Continue to Pay Benefits, Massachusetts Workers’ Compensation Lawyer Blog, July 21, 2016

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