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Massachusetts Reviewing Board Opinion Emphasizes Need for Payment of Appeal Fee for Impartial Medical Examination

Massachusetts General Laws c. 152, § 11A(2) of the Workers’ Compensation Act states that an impartial medical examiner is to be used whenever there is a dispute within a claim or a complaint over medical issues that is the subject of an appeal. In order to offset the cost of the medical examination, the injured worker must submit a fee equal to her or his average weekly wage in the Commonwealth at the time of the appeal. A failure to do so can quash the appeal, as seen in the Reviewing Board decision of Saini v. Jeffco Fibers, Inc. (Board No. 044894-91).

In this case, the employee had a work injury in 1991 and settled four years later for $145,000. Eleven years after the settlement, the injured worker filed a claim for the payment of medical bills, which was denied by the ALJ. Resting GavelA timely appeal was filed but was not accompanied by the appeal fee. Notice was sent to the claimant’s attorney, but the fee remained unpaid. A month after the notice of the overdue fee was sent, the case was withdrawn. The injured employee’s attorney complained after the withdrawal, but the ALJ kept it in place, pointing out that the impartial medical examination was not waived by the insurer. A second and third claim were filed but were also withdrawn. Eventually, at another hearing, an ALJ formally denied and dismissed the claim for medical benefits, tying it back to the original submission and pointing out that the failure to pay the fee amounted to an acceptance of the order under General Laws c. 152, § 10A(3).

The injured worker argued that there was no medical dispute, so there was no need for an impartial medical examination. However, the conference memorandum signed by both parties indicated that an Impartial Examination would be needed, specifically an orthopedic examination. The Reviewing Board pointed out that the time to formally assert that no exam was needed would have been at the conference. The Board looked at an Appeals Court case for guidance, which dealt with a similar situation. In that case, the claims also involved a medical issue, and the conference order did not indicate otherwise, so the appeal fee was required to be paid with the filing. Since it was not provided, the appeal was not perfected, and the ALJ’s order and findings were considered to be accepted. Based on case law, the Reviewing Board affirmed the ALJ’s ruling on the matter, and the injured worker was precluded from pursuing medical benefits.

Seeking any type of workers’ compensation benefits can be challenging, whether you’re seeking medical benefits or permanent total disability benefits. The Massachusetts workers’ compensation attorneys at Karsner & Meehan can help you with your claim. To speak with one of our experienced counsel, contact our office today at 508.822.6600 for a free, confidential consultation.

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