Opinion
BOARD No. 021355-94
Filed: June 10, 1997
REVIEWING BOARD DECISION (Judges Smith, McCarthy and Maze-Rothstein)
APPEARANCES
Joseph S. Provanzano, Esq., (at conference) and Ronald D. Malloy, Esq. (at hearing and on appeal), for the employee
Edward A. Carey, Esq., (at hearing) and Timothy F. Nevils, Esq. (on appeal), for the insurer
This is another in the series of cases involving dismissal of a claim for nonpayment of the impartial examination fee required by G.L.c. 152, § 11A. The claim was dismissed on June 11, 1996 before the issuance of our decisions in Rivera v. Sheraton Springfield Interstate, 10 Mass. Workers' Comp. Rep. 599 (1996) and Freitas v. Analog Devices, Inc., 10 Mass. Workers' Comp. Rep. 601 (1996). Because the dismissal was based on the allegedly indigent employee's failure to pay the filing fee required by G.L.c. 152, § 11A, we recommit for indigency proceedings.
William Gelott filed a claim for compensation on July 8, 1994. The claim was conferenced on November 23, 1994 and denied by Order filed December 5, 1994. The employee then filed a timely notice of appeal for a § 11 hearing. (Appeal of Conference Proceeding dated December 13, 1994.) With the notice of appeal, Gelott filed a motion to waive the appeal fee for the impartial medical examination on the grounds of indigency, together with an affidavit of indigence. On December 29, 1994, the Division notified Gelott that his claim would not be processed further because he had failed to submit the required fee. It advised him that he could petition the Commissioner to enlarge the time for filing the fee. The employee followed that direction and filed the appropriate motion with the Commissioner. (Petition filed January 14, 1995.) On March 3, 1995, the Commissioner denied the petition and gave the employee 10 days to submit the fee. The employee had then changed counsel who allegedly did not receive notice of this decision. Allegedly upon learning of it, he filed a motion to allow a late filing fee based upon lack of notice of the earlier ruling. (Motion dated May 30, 1995.) The Commissioner denied the motion. (Commissioner's Memorandum dated June 2, 1995.) Meanwhile, the Neff case was winding its way through the courts. At the time of his rulings in this case, the Commissioner did not have the benefit of the court's guidance on the fee waiver issue.
In Neff v. Commissioner of the Dep't of Indus. Accidents, 421 Mass. 70 (1995), (Neff I), the Supreme Judicial Court held that the Workers' Compensation Act implicitly permits the Commissioner to grant a waiver to indigent claimants, even those represented by attorneys, of the impartial medical examination fee. Subsequently, in Neff II, No. S.J. 94-0277, a Declaratory Judgement after Rescript (December 13, 1995), the court ordered the Commissioner to act on waiver request within 60 days and if denied, render reasons for determination in writing. In response to the court's directive, on January 26, 1996, the Commissioner adopted an emergency regulation to effectuate indigency waivers of the impartial examination fee, amending 452 CMR 1.02 and 1.11. On April 26, 1996, the emergency regulation was replaced by Circular Letter No. 282, which contained essentially the same procedures as the emergency regulation.
In light of these developments, we think that Gelott should have the opportunity to file the newly established forms to pursue his request of an indigency waiver of the impartial fee. We therefore vacate the dismissal of his claim and return the case to the senior judge for further proceedings consistent with the principles set out in Neff I and II and Circular Letter No. 282.
So Ordered.
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative law Judge
Filed June 10, 1997