LEOPOLDO CRUZ'S CASE

DREBEN, J. The sole question in this worker's compensation case is whether the employee was the prevailing party and hence entitled to legal fees pursuant to G. L. c. 152, s. 13A(5) [Note 1], and 452 Code Mass. Regs. s. 1. 19(4) (1992). [Note 2]

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The employee sustained an injury to his back on November 6, 1989, and received total incapacity compensation under G. L. c. 152, s. 34. On December 4, 1991, the insurer filed Form 108 of the Department of Industrial Accidents (department), a form entitled "Insurer's Request for Reduction, Suspension or Discontinuance of Compensation." As the factual basis for its request, the insurer typed in, "disability ended based on the October 30, 1991 report of Dr. Robert Levine." After lengthy proceedings set out in the margin [Note 3], an administrative judge found that the employee was only partially disabled and had some earning capacity. Accordingly, the payments of the insurer were reduced. The administrative judge, however, ordered the payment of the employee's attorney's fees.

Section 13A(5) of c. 152, note 1, supra, requires payment of such fees if the employee "prevails," and 452 Code Mass. Regs. s. 1.19(4), see note 2, supra, states that the employee shall be deemed to have prevailed "when compensation is ordered or is not discontinued." Claiming that it was the prevailing party as it achieved a reduction in payments, the insurer appealed to the reviewing board. The reviewing board affirmed the award of the legal fee, and the insurer now appeals from that decision.

While recognizing that a strict reading of the regulation, see note 2, supra, would sustain the fee award because compensation was not "discontinued" but only reduced, the insurer argues

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that the regulation cannot be upheld as it is inconsistent with the statute which provides for fees only if the employee prevails. See note 1, supra. Although an agency's regulation is entitled to great weight, see Gonzalez's Case, 41 Mass. App. Ct. 39 , 41 (1996), and cases cited, at first blush the insurer's position appears to have merit. In workers' compensation cases, however, the employee is considered the prevailer if he "succeeds on any significant litigation issue, achieving 'some of the benefit' sought in the controversy." Connolly's Case, 41 Mass. App. Ct. 35 , 38 (1996) (citation omitted). See Bardon Trimount, Inc. v. Guyott, 49 Mass. App. Ct. 764 , 779 (2000).

Here, although the insurer claims that all it sought was a reduction in payments and it succeeded in that endeavor, the record shows that more was at stake. The issues in controversy listed by the administrative judge were:

"1. The extent of the employee's present disability;

2. The cause of the employee's present disability."

The insurer by its appeal was contesting not only the extent of the employee's disability but also its causal relationship to the accident. The employee's entire entitlement to compensation was thus placed in jeopardy.

Given the issues raised by the insurer's appeal from the conference order and the administrative judge's findings of partial disability and causal relationship, the employee prevailed within the meaning of s. 13A(5). Compensation was not discontinued. See Connolly's Case, 41 Mass. App. Ct. at 37; Locke, Workmen's Compensation s. 12.4, at 357 (Koziol Supp. 2000). Had the administrative judge found that the employee was not disabled at all - a finding that in theory was possible despite Dr. Levine's opinion - or, alternatively, had the administrative judge not found that the partial disability was caused by the employee's employment, the employee would have lost all his compensation payments. [Note 4]

We conclude that 452 Code Mass. Regs. s. 1.19(4) (1992),

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the regulation challenged by the insurer, at least in the circumstances of this case, where the employee succeeded on significant litigation issues, is not inconsistent with G. L. c. 152, s. 13A(5).

Decision dated December 2, 1997, affirmed.