Workers’ compensation – Documentation – Counsel fees

Where an administrative judge awarded an employee temporary total incapacity benefits plus §30 medical benefits, that decision should be affirmed despite the self-insurer’s argument that the employee failed to file his claim with documentation satisfying statutory and regulatory requirements.

“The self-insurer appeals from the administrative judge’s decision awarding the employee §34 temporary total incapacity benefits, plus §30 medical benefits. We affirm the decision in all respects but address below two of the self-insurer’s arguments that warrant discussion. …

“We address the self-insurer’s two arguments relating to the sufficiency of the documentation attached to the employee’s claims for benefits. Specifically, the self-insurer asserts that the administrative judge erred by awarding benefits to the employee and a fee to his attorney because the employee’s claim for benefits, when filed, failed to satisfy the requirements of 452 Code Mass. Regs. §1.07(2)(f) and G.L.c. 152, §10(1), respectively. … The self-insurer argues that the reviewing board must dismiss the employee’s claims and declare all orders and decisions voided ab initio because the employee failed to file his claim with documentation satisfying those statutory and regulatory requirements. … We disagree. …

“In November 2023, when filing his claims for weekly benefits under both dates of injury, the employee attached the same one-page medical document to each of those claims. … The document, dated November 2, 2023, was a form signed by the employee’s treating physician, Andrew Rogers, M.D., which listed the employee’s name and date of birth, with a check mark placed next to the typed phrase ‘unable to work at this time.’ … The claims were accepted by the Department’s Office of Claims Administration and a conciliation was scheduled. …

“… The time to object to noncompliance with the regulation was at the filing stage. We agree with the employee that if the self-insurer was aggrieved by the acceptance and processing of the claim, it should have filed an objection with the senior judge.  … Specifically, when the claim was sent forward by the conciliator, the self-insurer could have filed a formal request to rescind the referral with the conciliation manager, the senior judge, or both. … Thus, we find the self-insurer’s failure to timely avail itself of the existing remedies is deemed a waiver of the issue.

“The self-insurer also argues that the administrative judge erred at both the conference and hearing levels in awarding the employee’s attorney a fee in contravention of G.L.c. 152, §10(1), because the medical documentation attached to the employee’s claim was not sufficient to be deemed ‘relevant’ to the claims filed in the employee’s cases. …

“We disagree with the self-insurer that the administrative judge erred in awarding attorney’s fees in this matter. First, insofar as it claims the judge erred in ordering a §13A(5) hearing fee, the self-insurer fails to appreciate that pursuant to §13A(10), the prohibition on ordering attorney’s fees included in §10(1) does not apply to the hearing stage. … The self-insurer’s argument against the awarding of a fee at conference also fails since the provisions of §10(1) merely require submission of a ‘medical report relevant to the alleged claim.’ G.L.c. 152, §10(1). Here, the administrative judge specifically rejected the self-insurer’s argument on the issue, stating that the employee’s claims were accompanied by the medical note signed by the employee’s treating physician, Dr. Rogers. … The administrative judge awarded the employee benefits at conference, clearly demonstrating that she found Dr. Rogers’s note relevant to the claim, as was in her considerable discretion to do so. We find no error in her determination of the relevancy of the note. With relevancy established, the self-insurer’s argument that no conference fee is due pursuant to §10(1) is meritless.

“Accordingly, we affirm the judge’s decision. The insurer is ordered to pay employee’s counsel an attorney’s fee pursuant to §13A(6), in the amount of $1,964.82, plus necessary expenses.”

Re: Sologaistoa, Scott (Lawyers Weekly No. 25-005-26) (7 pages) (Fabiszewski, A.L.J.) Paul S. Danahy for the employee; Robin Borgestedt for the self-insurer (Board Nos. 003567-16 and 020702-18) (June 8, 2026).

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