§ 13A — Attorney's fees for employees

Section 13A. (1) Whenever an insurer contests an initial liability claim for benefits submitted on a form prescribed by the department, by failing to commence the compensation requested within twenty-one days of receipt of such claim, and then, at any time prior to a conference held under section ten A, the insurer agrees to pay, with or without prejudice, the compensation claimed to be due, said insurer shall pay an attorney's fee to the employee's counsel in the amount of seven hundred dollars, plus necessary expenses; provided, however, that only one such fee shall be paid with respect to any such written claim under this paragraph. An insurer shall reduce such a fee to three hundred fifty dollars when pursuant to a conciliator's finding said attorney failed to appear at a scheduled conciliation and such failure was not beyond the control of said attorney. Only one fee under this paragraph shall be paid with respect to any written claim. A conciliator shall have the authority to extend the twenty-one day period within which no attorney's fee is due to no more than thirty-five days, if in the opinion of the conciliator such extension increases the likelihood of the payment of the claim prior to referral to the industrial accident board. Such extensions shall be granted after consultation with the parties and a written indication shall be appended to the case file.(2) Whenever an insurer contests an initial liability claim for benefits as provided by subsection (1), and then is ordered to pay such benefits by an administrative judge pursuant to a conference held under section ten A, said insurer shall pay an attorney's fee to the employee's counsel in the amount of one thousand dollars, plus necessary expenses; provided, however, that an administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney; provided, further, that only one such fee under this paragraph shall be paid with respect to any such written claim. An insurer shall reduce such a fee to five hundred dollars when, pursuant to a conciliator's finding said attorney failed to appear at a scheduled conciliation and such failure was not beyond the control of said attorney.(3) Whenever an insurer contests a claim for benefits on a form prescribed by the department other than an initial liability claim as provided by subsection (1), by failing to commence the compensation requested within twenty-one days of receipt of such claim and then, at any time prior to a conference pursuant to section ten A the insurer agrees to pay the compensation claimed to be due, said insurer shall pay an attorney's fee to the employee's counsel in the amount of five hundred dollars, plus necessary expenses; provided, however, that only one such fee shall be paid with respect to any such written claim under this paragraph. An insurer shall reduce such a fee to two hundred fifty dollars when, pursuant to a conciliator's finding, said attorney failed to appear at a scheduled conciliation and such failure was not beyond the control of said attorney. For purposes of this subsection, the filing of a subsequent written request on a prescribed form shall be deemed an additional written claim for benefits. A conciliator shall have the authority to extend the twenty-one day period within which no attorney's fee is due to no more than thirty-five days, if, in the opinion of the conciliator, such extension increases the likelihood of the payment of the claim prior to referral to the industrial accident board. Such extensions shall be granted after consultation with the parties and a written indication shall be appended to the case file.(4) Whenever an insurer files a complaint to reduce or discontinue an employee's benefits or whenever an insurer contests a claim for benefits on a form prescribed by the department other than an initial liability claim as provided by subsection (1), by failing to commence the compensation requested within twenty-one days of receipt of such claim, if the order of the administrative judge pursuant to a conference held under section ten A, reflects the written offer submitted by the claimant or by a conciliator on the claimant's behalf, pursuant to section ten or section ten A, said insurer shall pay an attorney's fee to the employee's counsel in the amount of seven hundred dollars, plus necessary expenses. If the order of the administrative judge reflects the written offer submitted by the insurer or by a conciliator on the insurer's behalf, pursuant to section ten or section ten A, no attorney's fee shall be payable to the employees' counsel. If the order reflects an amount different from both submissions, the fee shall be in the amount of three hundred fifty dollars, plus necessary expenses. Any fee payable under this paragraph shall be reduced by half when the attorney failed to appear at a scheduled conciliation, and such failure was not beyond the control of said attorney. Only one such fee shall be paid with respect to any particular written claim under this paragraph.(5) Whenever an insurer files a complaint or contests a claim for benefits and then either (i) accepts the employee's claim or withdraws its own complaint within five days of the date set for a hearing pursuant to section eleven; or (ii) the employee prevails at such hearing the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.(6) Whenever an insurer appeals a decision of an administrative judge and the employee prevails in the decision of the reviewing board, the insurer shall pay a fee to the employee's attorney in the amount of one thousand dollars, plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.(7) Whenever an employee appeals a decision of an administrative judge and the employee prevails in the decision of the reviewing board, the employee shall pay an attorney's fee sufficient to defray the reasonable costs of counsel retained by said employee. Subject to the approval of the reviewing board, such fee shall be an amount agreed to by the employee and his attorney.(8) Whenever an insurer and an employee agree to a settlement under section forty-eight, the attorney's fee shall be paid from the settlement in accordance with the following provisions:(a) when the insurer and the employee reach such settlement prior to insurer acceptance of liability or prior to a decision of an administrative judge, the reviewing board, or the appeals court of the commonwealth finding insurer liability, such fee shall be no more than fifteen percent of the amount of such settlement;(b) when the insurer and the employee reach such settlement subsequent to insurer acceptance of liability or subsequent to a decision of an administrative judge, the reviewing board, or the appeals court of the commonwealth finding insurer liability which is in effect at the time such agreement is entered into, such fee shall be no more than twenty percent of amount of such settlement.(9) In any hearing or review requested by an insurer aggrieved by an order or decision with respect to an injury occurring prior to November first, nineteen hundred and eighty-six or in a proceeding brought by an insurer or self-insurer as to the continuance of compensation being paid under this chapter for an injury occurring prior to November first, nineteen hundred and eighty-six, there shall be awarded an amount sufficient to compensate the employee for the reasonable costs of such hearing review or proceeding including reasonable counsel fees and expenses, provided that the employee prevails at such hearing review or proceeding. Such amounts shall be paid by the insurer. Any other attorneys' fees for services provided claimants for injuries prior to November first, nineteen hundred and eighty-six, shall be of an amount agreed upon between the employee and the attorney.(10) The attorneys' fees specified in this section shall be the only fees payable for any services provided to employees under this chapter unless otherwise provided by an arbitration agreement pursuant to section ten B. In any instance in which an attorney's fee under subsection (1) to (6), inclusive, is due as a result of a cash award being made to the employee either voluntarily, or pursuant to an order or decision, the insurer may reduce the amount payable to the employee within the first month from the date of the voluntary payment order or decision, by the amount owed the claimant's attorney; provided, however, that the amount paid to the employee shall not be reduced to a sum less than seventy-eight percent of what the employee would have received within that month if no attorney's fee were payable. The dollar amounts specified in said subsections (1) to (6), inclusive, of this section shall be changed October first of each year by the percentage change in adjusted benefits from the preceding year as calculated and limited in paragraph (a) of section thirty-four B. The department shall provide by rule the necessary expenses that are reimbursable under this section. No fees shall be payable under subsection (1), (2), (3) or (4) unless the claim subject to the dispute was filed according to the provisions of section ten.(11) In any proceeding at which a penalty pursuant to section seven or section eight is awarded an employee by an administrative judge, the attorney's fee payable for such proceeding shall not be included in any formula utilized to establish premium rates for workers' compensation.