SMITH, J.
The employee appeals from a decision on her initial liability claim, which found an industrial injury resulting in incapacity until the date when the employer offered suitable work which she refused. Because it is unclear whether the judge had all the evidence before him at the time of his decision, we find it appropriate to recommit the case for further findings.
The employee, Deborah Rodriguez, sustained an industrial injury on June 23, 1994 arising out of and in the course of her employment as a "picker" with Decatur Hopkins when she tripped and fell on uneven floor boards while picking an order. (Dec. 2, 4.) The insurer contested Rodriguez's claim. After a § 10A conference, the judge ordered the insurer to pay Rodriguez temporary total incapacity benefits from June 23, 1994 to September 6, 1994 at the rate of $117.60 based upon an average weekly wage of $196.00 and medical benefits under the provisions of G.L.c. 152, § 30. (Dec. 2.) Rodriguez timely appealed the order to a hearing de novo. Pursuant to G.L.c. 152, § 11A, Rodriguez was evaluated by James Coleman, M.D. on March 28, 1995. (Dec. 3.) A hearing was convened on July 24, 1995.
At the de novo hearing, Rodriguez claimed entitlement to benefits pursuant to G.L.c. 152, § 34 from June 24, 1994 to November 6, 1994 and to § 35 benefits from December 25, 1994 to date and continuing. Rodriguez also claimed benefits pursuant to §§ 13, 30, and 13A. The Insurer raised as defenses: liability, disability, extent thereof, causal relationship, and denied entitlement to §§ 13 and 30 and § 36 benefits. (Dec. 3.) Rodriguez moved for permission to submit additional medical testimony for the period of medical care undertaken prior to the date of the § 11A examination. That request was summarily denied by the judge. (Tr. 64.)
The employee agrees that the decision erroneously listed claims for §§ 28 and 31 benefits. (Dec. 3; Employee Counsel Letter dated November 8, 1995.)
Following the lay hearing, the parties were given leave to depose the impartial physician, Dr. Coleman. The judge originally instructed the parties to submit transcripts no later than September 18, 1995. Due to scheduling difficulties, the deposition of Dr. Coleman was not taken until September 28, 1995. The judge extended the time to file the deposition to October 18, 1995. (Employee's Brief, 2 with attached Ex. #1.)
On November 7, 1995, the judge filed his hearing decision. The decision did not list Dr. Coleman's deposition as evidence. The judge wrote that he decided the medical issues based solely on the impartial report because the deadline of September 18, 1995 (the original date for submission of the deposition) had passed without receipt of the transcript or notice of a scheduled deposition. (Dec. 9.)
Based on the impartial report, the judge found that the employee suffered from a right foot and ankle sprain, preexisting degenerative arthritis of the tarsal-metatarsal joints of the right foot, and obesity. The doctor causally related the sprain to the industrial injury. The doctor felt that the employee was limited to sedentary work, with limited standing and walking. (Dec. 8-9.) This information, coupled with the employee's testimony, caused the judge to conclude that by September 6, 1994, Rodriguez had recovered an ability to earn equal to or greater than her average weekly wage. (Dec. 10.) As a result, he ordered no benefits beyond those paid pursuant to the conference order. (Dec. 10-11.) He did not award any counsel fees. (Id.)
The employee appeals to the reviewing board, raising four issues:
1. Whether the failure to consider the deposition testimony of the Impartial Medical Examiner under § 11A, timely submitted, when considering benefits due pursuant to § 34 or 35 of the Act, constitutes procedural irregularity, requiring recommittal to the Administrative Judge?
2. Whether it was error to deny and dismiss the employee's claims for §§ 13 and 30 benefits where the employee established, by a preponderance of the evidence that she sustained a compensable industrial injury?
3. Whether the Administrative Judge erred in failing to award benefits to the employee in accordance with § 35A when it was demonstrated that the employee had four dependent children within the meaning of the Act?
4. Whether the Administrative Judge erred in his failure to award an attorney's fee under § 13A(5) when liability is in issue and is established by a preponderance of the evidence?
(Employee's Brief 8.) We will address each issue in turn, beginning with the missing deposition.
The board file does not contain the deposition transcript. We are unable to determine from the record on appeal whether the deposition transcript was in fact timely submitted as the employee asserts. Although the judge indicated the wrong date for the deposition submission deadline, it appears, from the absence of the deposition in the board file, that no transcript was received by him within the correct, extended deadline. If the employee placed the deposition transcript in a timely fashion in the United States mail, then he fulfilled his obligation for its timely submission and is entitled to have the judge consider it. Pompi v. Kimberly-Clark Corp., 8 Mass. Workers' Comp. Rep. 127, 129-130 (1994); see 452 CMR 1.02; 452 CMR 1.12 (5)(b). However, if he did not, then he is not entitled to place it in evidence now.Doyle v. E.H. Hinds Co., 6 Mass. Workers' Comp. Rep. 52. 52 (1992). Because the parties in their briefs do not indicate whether the deposition was in fact timely submitted, we recommit the case to the administrative judge for further proceedings to determine that issue. Hebert v. Brockway Smith Co., 10 Mass. Workers' Comp. Rep. 679, 680, n. 4 (1996).
"Filed as used in M.G.L.c. 152, §§ 10A and 11C and as used in 452 CMR 1.11 (1) and 1.15 (1) shall mean placement of the appeal in the mail to the Department postmarked no later than midnight. . . ."
"All depositions shall be submitted at the time requested by the administrative judge but no more than 60 calendar days from the close of lay testimony, provided that a party may motion the administrative judge for an extension for cause for no more than 30 calendar days. Any extension shall be authorized in writing by the administrative judge on motion by a party."
In so doing, we emphasize that such a recommittal for further findings of fact does not indicate any prejudicial error by the judge.
We next address the medical payment issue. The judge did not deny and dismiss the employee's claims for §§ 13 and 30 benefits. The judge found that the employee sustained a work injury and that the treatment she received was both reasonable and necessary. (Dec. 10.) The judge then went on to deny "the remainder of the Employee's Claim." ( Id., emphasis supplied.) We construe this language to be an award of medical benefits for treatment including crutches, aggressive physical therapy, arthrogram and stress x-ray. (Dec. 9; Impartial Report 4.) If bills for such treatment remain unpaid, the employee on remand may request a specific order for their payment. If new medical disputes have arisen, the employee may file a new claim or request an amendment of the pending claim. See 452 CMR 6.04; 452 CMR 1.07; and 452 CMR 1.23.
"After exhaustion of the process set forth in 452 CMR 6.04 (4)(c) appealing the determination of the utilization review agent, . . . a party may file a claim . . . in accordance with 452 CMR 1.07 under the provisions of M.G.L.c. 152, § . . . 10."
"(2) Pursuant to the provisions of M.G.L.c. 152, § 7G, the following documentation must be attached to a claim for benefits . . .:
(c) 1. Claims for payment for adequate and reasonable health care services shall, where applicable, be accompanied by the following:
a. the dates of service;
b. the type of treatment or service and the itemized costs;
c. office notes, hospital records, or a statement from the attending physician or medical vendor that such visit, testing, prescription drug, therapy, or ancillary medical service device or aid was reasonable, necessary, and causally related to the injury for which the employee is eligible for benefits. . . .
All bills presented shall, where possible, contain treatment codes, the percentage of reimbursement to which the hospital is entitled and the provider's tax identification number."
(1) . . . At the time of a conference or thereafter, a party may amend such claim . . . only by filing a motion to amend with an administrative judge. Such a motion shall be allowed by the administrative judge unless the amendment would unduly prejudice the opposing party.
(3) No amendment to a claim or complaint may be made except as provided by M.G.L.c. 152 and 452 CMR 1.00. Any party shall be allowed a reasonable period of time to prepare a defense to an amended claim or complaint. Such period shall not exceed 45 calendar days from the date of notice of the amendment, unless an administrative judge finds that additional time to prepare a defense is needed."
We next turn to the dependency issue. The judge did not order dependency benefits after conference, although he did order § 34 total compensation benefits. (Conference Order filed January 12, 1995.) At the commencement of the de novo hearing, the employee filed an issues statement listing "dependency" as an issue she was raising. (Employee's Ex. 1.) The insurer's issues statement did not respond to the dependency issue. (Insurer Ex. 1.) At the commencement of the hearing, neither party, nor the judge, identified dependency as an issue. (Tr. 3-5.) The employee did testify that she had four children under the age of eighteen. (Tr. 5.) Her biographical data sheet lists the names and ages of those children. (Employee Ex. 1.) The insurer presented no witnesses in rebuttal.
The judge did not list § 35A dependency benefits as an issue in his decision and made no findings relative to them. UnlikeDebrosky v. Oxford Manor Nursing Home, 11 Mass. Workers' Comp. Rep. 243, 244-245 (1997), where it was clear from the insurer's presentation of adverse witnesses that an issue was tried by consent, here it is unclear whether the insurer and the judge realized that the employee was making this claim and consented to it. See 452 CMR 1.23 (text in n. 7, supra). The insurer did not respond to the dependency issue in its statement of defenses or by presentation of rebuttal witnesses. Nevertheless, on appeal, in its response brief, the insurer does not assert that the employee is not in fact entitled to dependency benefits. (Insurer's Brief 3.) If the insurer is conceding their entitlement, then it should promptly pay the dependency benefits. See 452 CMR 7.04 (c) and (e) (proper claims handling techniques). If this issue is not voluntarily adjusted, then the judge may address it on recommittal. "The better practice, of course, is for a written motion to amend the claim . . . See 452 CMR 1.23." Debrosky, supra at 245.
"Questionable claims handling techniques or patterns of unreasonably controverting claims shall include, but not be limited to, techniques or patterns of practice which involve the following: . . . (c) failing to effectuate prompt, fair, and equitable adjustments of claims in which liability, causal relationship, and/or extent of disability have become reasonably clear; . . . (e) prosecuting complaints or defending against claims without reasonable grounds, including, but not limited to, engaging in practices found violative of M.G.L.c. 152, § 14. . . ."
Finally, the employee claims that she is entitled to an attorney's fee, because she prevailed at the hearing on the issue of establishing liability for her industrial injury. We disagree. Where an employee seeks compensation in a de novo hearing initiated by her appeal of the conference order, she "prevails" only when the judge directs "a payment of weekly compensation or other compensation benefits exceeding that being paid by the insurer prior to such decision." 452 CMR 1.19 (4). In this case, at conference, the employee was awarded a limited period of § 34 total weekly compensation benefits and "medical benefits under the provisions of M.G.L.c. 152, § 30." (Conference Order filed January 12, 1995.) She gained nothing more from the hearing decision that had been awarded to her at conference. Therefore, under the applicable regulation, she did not "prevail". Compare Connolly's Case, 41 Mass. App. Ct. 35 (1996) (insurer's appeal to a hearing from a conference order). The fact that the judge found that an industrial accident did occur does not, in and of itself, entitle the employee to counsel fees. Gonzalez's Case, 41 Mass. App. Ct. 39 (1996).
Thus, although we do not find any prejudicial error in the decision, because the employee has asserted a due process deprivation which we are unable to assess based on the record before us, we find it appropriate to recommit the case to the administrative judge for further proceedings to determine the validity of that assertion. The judge may take such other action as he finds necessary to do justice.
So ordered.
______________________________ Suzanne E. K. Smith Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: November 6, 1997