ALVIN W. GREEN'S CASE

PORADA, J. This appeal presents us with another worker's compensation case in which we are asked to determine whether the employee was the prevailing party [Note 1] and, thus, entitled to attorney's

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fees under G. L. c. 152, s. 13A(5) [Note 2], and the applicable regulation, 452 Code Mass. Regs. s. 1.19(4) (1997) [Note 3]. Reversing an award of attorney's fees to the employee by an administrative judge after a hearing pursuant to G. L. c. 152, s. 11, the reviewing board (board) of the Department of Industrial Accidents (department) ruled that the employee was not a prevailing party and, thus, not entitled to attorney's fees under the applicable statute and regulation. On appeal, the employee argues (1) that the regulation is invalid and his entitlement to attorney's fees under the statute is mandated by our prior decisions in Connolly's Case, 41 Mass. App. Ct. 35 (1996), and Cruz's Case, 51 Mass. App. Ct. 26 (2001); or alternatively (2) that he is entitled to attorney's fees under the statute and regulation. We affirm the board's decision.

The employee incurred an injury in December, 1993, in the course of his employment for Back Bay Restaurant Group, Inc. The insurer accepted the claim and began paying temporary total incapacity benefits under G. L. c. 152, s. 34. On or about October 11, 1995, the insurer filed a complaint with the department to discontinue or modify benefits on the basis that the employee was able to resume some level of employment and, therefore, was no longer totally disabled. On January 25, 1996, an administrative judge issued a conference order pursuant to G. L. c. 152, s. 10A, authorizing the insurer to terminate payment of temporary total incapacity benefits under G. L. c. 152,

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s. 34, but ordering it to begin paying temporary partial incapacity benefits under G. L. c. 152, s. 35, at a rate of $218.08 per week from January 25, 1996, and continuing based on an assigned earning capacity of $175 per week for the employee. Both the employee and the insurer filed an appeal from the conference order, but in July, 1996, the insurer subsequently withdrew its appeal. At the February, 1997, hearing before the administrative judge on the employee's appeal, the employee sought temporary total disability benefits under G. L. c. 152, s. 34, and benefits under G. L. c. 152, s.s. 13 and 30, for payment of medical and hospital expenses. After the hearing, the administrative judge ordered the insurer to pay temporary partial disability benefits pursuant to s. 35, in the sum of $209.08 per week from December 20, 1996, and continuing based on an increased earning capacity of $190 assigned to the employee. The judge also ordered the insurer to pay attorney's fees pursuant to G. L. c. 152, s. 13A(5), based upon the fact that his decision modified but did not discontinue the employee's benefits. The judge also made a general award of s.s. 13 and 30 benefits. [Note 4] The insurer appealed the award of attorney's fees to the board. The board reversed the award of attorney's fees, based upon its conclusion that the employee was not a prevailing party under s. 13A(5) and 452 Code Mass. Regs. s. 1.19(4) where the employee's appeal did not result in increased benefits.

We address first the employee's attack on the regulation. The employee argues that it is inconsistent with the statute because it alters the meaning of the words "prevailing party" in the statute. Although the words "prevailing party" are not defined in the statute, the employee relies upon the meaning ascribed to those words in other worker's compensation cases decided by us. We have said that an 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. at 38. Cruz's Case, 51 Mass. App. Ct. at 28. Relying on that formulation, the employee argues that, because his appeal put in jeopardy the award of temporary partial disability benefits from January 25, 1996, and he retained those benefits even though they could have been eliminated or reduced

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based on the increased earning capacity assigned to him as a result of the hearing which resulted in a reduction of weekly temporary partial disability benefits from $218.08 to $209.08 beginning on December 20, 1996, he achieved success on a significant, disputed issue and, thus, is entitled to his attorney's fees.

In determining the validity of the subject regulation, we recognize that an administrative regulation is "not to be declared void unless [its] provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate, and enforcement of such regulation[] should be refused only if [it is] plainly in excess of legislative power." Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 613 (1997), quoting from Berrios v. Department of Pub. Welfare, 411 Mass. 587, 595-596 (1992). Further, a party who questions the facial validity of a regulation "bears the heavy burden of 'proving on the record "the absence of any conceivable ground upon which [the regulation] may be upheld" ' " (citation omitted). Id. at 612. We are of the opinion that, in the circumstances presented, the employee has failed to meet that heavy burden.

The regulation is simply an attempt to clarify what is meant by a "prevailing party" in the statute. It provides that, in all cases where compensation is ordered or not discontinued, the employee shall be deemed to have prevailed except in those cases where an employee but not the insurer appeals a conference order and the employee does not receive any increase in his benefits. It is not unreasonable for the regulation to provide that an employee shall not be considered to have prevailed under s. 13A(5) when it is the employee's own appeal, rather than the insurer's appeal, that has placed the employee's benefits in jeopardy and the employee gains no increased benefits from the appeal. Contrast Connolly's Case, 41 Mass. App. Ct. at 37 (in self-insurer's and employee's appeal all the benefits were at stake); Cruz's Case, 51 Mass. App. Ct. at 28 (the insurer's appeal placed the employee's entire benefits in jeopardy). Also, it is generally recognized that one of the purposes for the award of attorney's fees in worker's compensation cases is to discourage unnecessary litigation. See Ahmed's Case, 278 Mass. 180, 187 (1932); Daly's Case, 405 Mass. 33, 41 (1989). To the extent

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that the regulation achieves this purpose, we do not consider it in conflict with the provisions of s. 13A. For these reasons, we conclude the regulation is valid.

Nor do we think that the formulation that we have ascribed to the prevailing party in Connolly's Case warrants a contrary result. That formulation is based on a determination of who is a prevailing party under the Federal civil rights statute. Connolly's Case, supra at 38. Gonzalez's Case, 41 Mass. App. Ct. 39, 41-42 (1996). The focus of that formulation is on the results achieved in the litigation. Draper v. Town Clerk of Greenfield, 384 Mass. 444, 452-453 (1981), cert. denied sub nom. Draper v. Prescott, 456 U.S. 947 (1982). Kadlick v. Department Of Mental Health, 431 Mass. 850, 852-853 (2000). See Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978); Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979); Dahlem v. Board of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1511-1514 (10th Cir. 1990); Stivers v. Pierce, 71 F.3d 732, 751 (9th Cir. 1995). Here, the employee certainly did not appeal the conference order to achieve the status quo [Note 5] or to have his benefits reduced, which was the result of his appeal. Thus, focusing on the result of the employee's appeal, we think that the employee could not under the formulation applied in Connolly's Case or any definition [Note 6] of prevailing party be considered to have prevailed where he did not increase his benefits by his appeal.

This case, in any event, is distinguishable from both Connolly's Case and Cruz's Case because in both of those cases the insurer appealed and, thus, the exception under the regulation would have been inapplicable. Contrary to the employee's argument, where there was no appeal by the insurer from the conference order in this case, the board was correct in ruling that under both s. 13A(5) and 452 Code Mass. Regs. s. 1.19(4) the employee, who received no increased benefits from his appeal, was not the prevailing party.

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The decision of the reviewing board is affirmed.

So ordered.