Code of Massachusetts Regulations › 452 CMR - DEPARTMENT OF INDUSTRIAL ACCIDENTS › Title 452 CMR 1.00 - Adjudicatory Rules of the Industrial Accident Board › Section 1.19 - Payment of Attorneys Fees

Current through Register 1525, July 5, 2024
(1) Where an
			 attorney's fee is paid by the insurer pursuant to M.G.L. c.152, § 13A,
			 that shall be the only fee permitted and no additional fee shall be charged by
			 the attorney for such services. When the employee's attorney and the insurer
			 agree on a fee and expenses, such fee and expenses shall be deemed to be
			 approved by the administrative judge or Reviewing Board as the case may be.
			 When the employee's attorney and the insurer are unable to agree, the
			 administrative judge or Reviewing Board to whom the case was assigned shall
			 determine the appropriate fee pursuant to M.G.L. c. 152, § 13A.
(2) An employee and his or her attorney may
			 agree on a retainer, but only to pay for necessary and reasonable expenses and
			 disbursements related to his representation. Any employee's attorney entitled
			 to a fee paid by the insurer under M.G.L. c. 152, § 13A, shall provide the
			 administrative judge or Reviewing Board with an itemization of any necessary
			 and reasonable expenditures and disbursements related to his services,
			 including expenses and disbursements paid by the employee. The insurer shall
			 reimburse the employee for any such expenses or disbursements approved by the
			 administrative judge or the Reviewing Board.
(3) When an insurer, at least two days before
			 a conference, or at least five days before a hearing, serves on a claimant or
			 person receiving compensation or the representative of such claimant or person
			 a written offer to pay weekly compensation or compensation under M.G.L. c. 152,
			 § 30 or 36, and such offer is not accepted, the insurer shall not be
			 required to pay any fee under M.G.L. c. 152, § 13A, for such conference or
			 hearing, unless the order or decision rendered directs a payment of said weekly
			 or other compensation in excess of that offered. Such an offer may be to pay
			 weekly compensation in an amount less than the amount being paid at the time
			 the offer is tendered provided that, if the compensation is being paid pursuant
			 to M.G.L. c. 152, § 8, and the insurer has a workers' compensation policy
			 in effect for the policy year period in which the offer is made with the
			 employer where the alleged injury occurred, then a wage statement signed by
			 said employer indicating the average weekly wage at the time of such alleged
			 injury shall be attached to the written offer of payment.
(4) In any proceeding before the Division of
			 Dispute Resolution, the claimant shall be deemed to have prevailed, for the
			 purposes of M.G.L. c. 152, § 13A, when compensation is ordered or is not
			 discontinued at such proceeding, except where the claimant has appealed a
			 conference order for which there is no pending appeal from the insurer and the
			 decision of the administrative judge does not direct a payment of weekly or
			 other compensation benefits exceeding that being paid by the insurer prior to
			 such decision.
(5) For purposes of
			 M.G.L. c. 152, § 13A(5), withdrawal by an insurer at or after the hearing
			 shall constitute withdrawal within five working days of the date set for a
			 hearing pursuant to M.G.L. c. 152, § 11. For purposes of M.G.L. c. 152,
			 § 13A(5), the employee shall be deemed to have prevailed when an insurer's
			 M.G.L. c. 152, § 14 fraud or recoupment complaint is denied and dismissed.
			 For purposes of M.G.L. c. 152, § 13A(6), an employee shall be considered
			 to have prevailed before the Reviewing Board if an insurer has withdrawn after
			 an appeal for review has been filed under M.G.L. c. 152, § 11C.
(6) Nothing in 452 CMR 1.19 shall affect fees
			 paid to an attorney by an employee for services other than those rendered an
			 employee under M.G.L. c. 152.
(7)
			 The attorneys' fees due under M.G.L. c. 152, § 13A shall be computed
			 pursuant to M.G.L. c. 152, § 13A(10) based on the average weekly wage in
			 the Commonwealth on the date the order or decision is rendered, or the date the
			 insurer accepts the claim or withdraws its request for modification or
			 termination.
(8) For injuries
			 occurring before November 1, 1986, fees of attorneys for representation of
			 employees under M.G.L. c. 152 shall be subject to the approval of an
			 administrative judge or Reviewing Board. If the employee and attorney cannot
			 agree as to the attorney's fee, either party may notify the Division of Dispute
			 Resolution which shall assign the case for a conference and/or
			 hearing.