JOHN CONNOLLY'S CASE.

JACOBS, J . Asserting that he prevailed after a hearing in the Department of Industrial Accidents where his disability was challenged by the employer, the plaintiff employee [Note 1] appeals, claiming he should have been awarded an attorney's fee and expenses in accordance with G. L. c. 152, s. 13A(5). That hearing resulted from the appeal by both the employee and the employer, a self-insurer, from a conference order pursuant to G. L. c. 152, s. 10A, filed on April 14, 1992, awarding temporary total incapacity compensation from April 19, 1991, to July 2, 1991, in addition to medical benefits under G. L.

Page 36

c. 152, s. 30, and $1,000 in counsel fees, plus expenses, pursuant to G. L. c. 152, s. 13A(2).

At issue at the hearing, held pursuant to G. L. c. 152, s. 11, on December 12, 1992, were the employee's claims for temporary total compensation, medical benefits, and a claim for further benefits beyond July 2, 1991, as well as attorney's fees and expenses. The employer also appealed from the conference order raising issues of liability, disability, and the extent of disability. The administrative judge found that the employee was temporarily and totally disabled from April 18, 1991, to July 2, 1991, but then was capable of returning to work without restrictions. He also denied and dismissed the employee's claim for further benefits after July 2, 1991. The employee appealed to the reviewing board, which summarily affirmed the administrative judge's decision. [Note 2] The employee's claim for an attorney's fee was not addressed at either the hearing or reviewing board level.

The employee argues that the administrative judge failed to address all of his claims and issues in controversy, and this failure is a ground for reversal. However, with the exception of the employee's argument that a medical opinion improperly was adopted, which we address later, he does not argue any error in the administrative judge's disposition of any of his claims other than attorney's fees. Accordingly, we have no occasion to revisit the other claims and issues. The employer contends that it prevailed because no further compensation was awarded beyond that granted at the conference level.

1. Attorney's fees. Section 13A(5) [Note 3] provides that when an insurer contests a claim and the employee prevails at a s. 11 hearing, the insurer shall pay a fee of $3,500 to the employee's attorney. [Note 4] The regulations applicable at the time of the hearing in this case, 452 Code Mass. Regs. s. 1.19(4) (1992), state

Page 37

that an employee "shall be deemed to have prevailed, for the purposes of M.G.L. c. 152, s. 13A(1)-(3), when compensation is ordered or is not discontinued ...." [Note 5] Even though the employer challenged the employee's claims of disability at the de novo hearing, the evidentiary burden was on the employee with respect to all of his claims. See Ginley's Case, 244 Mass. 346, 348 (1923); Ballard's Case, 13 Mass. App. Ct. 1068 (1982); Mulcahey's Case, 26 Mass. App. Ct. 1, 3 (1988). Thus, all the benefits granted in the conference order were in jeopardy. [Note 6] Given that the employer appealed from the conference order and the judge entered a de novo finding of total temporary disability, the employee prevailed within the meaning of s. 13A(5) since, in the terms of the interpretive regulation, "compensation [was] ordered" in the sense that the previously ordered payments were confirmed. Had the administrative judge, responding to the employer's appeal, in any way reduced the temporary disability payments awarded by the conference order, the employee would have been exposed to a recoupment claim by the employer for the recovery

Page 38

of overpayments pursuant to s. 11D(3). [Note 7] See generally Gargano, Massachusetts Workers' Compensation s. 1.02, at 1-106-1-108 (3d ed. rev. 1994); Locke, Massachusetts Workers' Compensation Reform Act s. 7.18 (Supp. 1995). Consequently, the employee falls within the typical "prevailing party" formulation of one who succeeds on any significant litigation issue, achieving "some of the benefit" sought in the controversy. Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978). Cf. Daly's Case, 405 Mass. 33, 41 (1989). See generally Gargano, supra at s. 1.04; Locke, supra at s.s. 12.112.4. The decisions of the board and the administrative judge implicitly denying the employee's claim for an attorney's fee are, therefore, based on an error of law, and we remand this case to the Department of Industrial Accidents for an order that the employer pay the statutory legal fee and expenses. [Note 8] See Lettich's Case, 403 Mass. 389, 395 (1988).

2. Adoption of medical opinion. There is no merit in the employee's argument that the administrative judge improperly adopted the opinion of the employer's physician in concluding that the employee was able to return to work without restriction. In any event, the administrative judge's decision indicates he relied on more than the opinion of the employer's physician. See generally Amon's Case, 315 Mass. 210, 214-215 (1943); Woolfall's Case, 13 Mass. App. Ct. 1070, 1071 (1982).

3. Conclusion. The case is remanded to the Department of Industrial Accidents for an order requiring the employer to pay the statutory attorney's fee of $3,500 and necessary expenses pursuant to s. 13A(5). In all other respects the decision of the reviewing board is affirmed.

So ordered.