Massachusetts Reviewing Board of Industrial Accidents Affirms Dismissal of Employee’s Claim for Psychological Impairment from Injury when Employee Failed to Pay Share of Medical Examination as Agreed

The Massachusetts Reviewing Board of Industrial Accidents reviewed a decision in favor of an employer’s workers’ compensation insurer, affirming the dismissal of an injured employee’s claim for psychological impairments.  In this appeal, the issue was whether it had been an abuse of discretion for the Director to deny the employee’s fee waiver petition and ultimately for the judge to dismiss the employee’s claim.

In a decision involving an injured employee’s failure to pay for one-half of a medical examination, the Massachusetts Reviewing Board of Industrial Accidents held that his claim for benefits was denied and dismissed it.

The case before the Board presented a long procedural history related to an April 10, 2007 work injury.  On appeal, the issue centered on the dismissal of the employee’s claim for psychological impairments allegedly related to that injury.  At a hearing, after the employee appealed an order denying this claim, the judge found the § 11A impartial medical report was adequate but then opened the record due to medical complexity.

Then, the parties were informed that a new impartial physician would be assigned, and the employee’s counsel agreed to the new impartial physician.  The parties agreed to split the $650.00 fee for the new § 11A examination. While the insurer paid their $325.00 share of the fee, the employee did not pay his share.

The new impartial physician examined the employee and wrote a report, but it was not released because the employee did not pay his share of the fee.  The employee’s counsel then presented a Request for Waiver of Fees.  The judge informed the employee that if the request was denied, and the employee did not pay his share of the fee, the judge would deny and dismiss the case.  The Director denied the request and ultimately dismissed the employee’s claim. The employee then appealed.

According to Massachusetts law, the Director rules on fee waiver requests.  Granting a fee waiver is at the Director’s discretion.  Here, the employee argued that the Director’s denial of his fee waiver petition was an abuse of discretion and a violation of his due process rights.  He requested that the decision be vacated and the matter recommitted to consider his fee waiver request, based on his proven indigence.  The insurer argued that the employee’s counsel had agreed, several times, to pay half of the fee for the impartial physician’s examination and could not later “backtrack” on the agreement to pay.

The Board stated that they lack the statutory authority to review a Director’s decision. The reviewing board made clear they did not have the authority to determine if the decision by the Director denying the employee’s waiver request for the impartial examiner’s fee was an abuse of discretion.

Next, the Board stated the employee had a number of opportunities offered by the judge to pay half of the fee, and his counsel had already agreed to pay the fee, but the employee did not do so.  The judge had informed the employee that a failure to pay his half of the fee or obtain a waiver from the Director would lead to the denial and dismissal of his claim.

The Board did state in their opinion that the employee’s appeal did not include whether the judge had been arbitrary or capricious in dismissing the employee’s claim for failure to prosecute, due to not receiving a second impartial physician’s report. Here, the employee raised the issue of whether the Director’s denial of his request for a fee waiver abused his discretion, so all other issues that could have been raised had now been waived.

The Board affirmed the denial and dismissal of the employee’s claim.

The Massachusetts attorneys at Pulgini & Norton offer skilled legal representation for clients pursuing workers’ compensation benefits. If you or a loved one has been hurt in a job-related accident, you may be entitled to compensation for medical expenses, lost wages, and other benefits.  Contact us today to discuss your claim and receive a free consultation with an attorney. We can be reached by calling (781) 843-2200 or completing our online form.

More Blog Posts:

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 Blog, July 21, 2016

Massachusetts Appeals Court Reviews Worker’s Compensation Claim for Carpal Tunnel Syndrome, Massachusetts Workers’ Compensation Blog, May 19, 2016

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