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In re Conroy6/7/2004
Suffolk.
September 10, 2003.
Insurance, Workers' compensation insurance. Workers' Compensation Act, Attorney's fees, Conference procedure, Discontinuance of payments. Words, "Prevailing party."
The case was heard in the Appeals Court by Cowin, J.
Mary Conroy, a former employee of the self-insurer, Norwood Hospital (hospital), was awarded attorney's fees and reasonable expenses in connection with the hospital's complaint for discontinuance or modification of workers' compensation benefits. When the hospital's request was denied following an informal conference, G. L. c. 152, § 10A, it sought a hearing pursuant to G. L. c. 152, § 11, where the hospital succeeded in its bid to discontinue benefits to Conroy. The reviewing board of the Department of Industrial Accidents (department) upheld the administrative judge's determination that Conroy had "prevailed" in the § 11 hearing, entitling her to an award of attorney's fees and expenses under G. L. c. 152, § 13A(5).
At the crux of the reviewing board's decision was the fact that the hospital did not, at any point in the proceedings when it might have been appropriate to do so, limit the period for which Conroy was at risk for recoupment of benefits ordered to be paid after the informal conference, and that she therefore was required to defend against the possibility that the hospital would seek a recoupment of benefits to at least the date of the conference order. We agree that on the particular facts of this case Conroy prevailed at the hearing.
1. Summary of facts and proceedings.
We summarize certain facts to provide a background for the dispute. Conroy was hired as a nurse's aide at the hospital in 1989. Her duties eventually required that, among other things, she transport patients from the postsurgery recovery room to different floors in the hospital. On March 12, 1993, Conroy attempted to push a patient in a heavy bed into the hospital elevator when one of the wheels of the bed became caught in the threshold. As Conroy lifted the bed in an attempt to dislodge the wheel, she felt a "crack" across her back. Conroy sought treatment in the hospital's emergency room immediately after the incident, and later with a series of physicians. Her treatment consisted primarily of medical and physical therapy, as well as cortisone injections approximately every six months, but no surgery was ever performed.
At the time of the incident, the hospital accepted Conroy's workers' compensation claim and Conroy received temporary total incapacity benefits pursuant to G. L. c. 152, § 34, at a rate of $195.89 per week (based on an average weekly wage of $326.48).
On December 12, 1994, the hospital filed a complaint for leave to discontinue or modify benefits. The hospital's complaint did not request a specific termination date. On March 14, 1995, an administrative judge of the department held an informal conference pursuant to G. L. c. 152, § 10A, as amended through St. 1991, c. 398, §§ 27, 28, in the course of which Conroy, assisted by counsel, presented her case. The conference order denied the hospital's request for discontinuance and continued Conroy's weekly benefit payments. The hospital requested a de novo evidentiary hearing pursuant to G. L. c. 152, § 11.
The hospital's request for a § 11 hearing triggered the appointment of an impartial medical examiner in accordance with G. L. c. 152, § 11A, and Dr. Forrest Maddix was duly appointed. Conroy was examined by Dr. Maddix on May 25, 1995. In his examination report, Dr. Maddix stated that Conroy's "symptoms are grossly exaggerated" and concluded "that there is no apparent organic justification fr
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