LEVINE, J.
The employee appeals from a decision in which the administrative judge (1) denied his claim for a penalty under § 8 (1) of G.L.c. 152 (the Act) owing to the insurer's late payment of a translator's $85.00 fee, and (2) assessed costs against the employee's counsel under § 14 (1) of the Act for pursuing the claim without reasonable grounds therefor.
Because the translator's fee was due to the service provider, it was not a "payment due the employee" within the meaning of § 8 (1). We therefore affirm the judge's denial of the penalty. However, the § 14 (1) assessment was inappropriate. We therefore reverse the decision as to that issue.
The employee settled his workers' compensation claim by a § 48 lump sum agreement which was approved by an administrative judge on June 1, 1994. At the lump sum conference, translating services were provided by Benoit Interpreting. The $85.00 fee for those services was listed in the approved agreement as an expense for the insurer to pay to Benoit. (Dec. 3.)
The insurer timely paid all of the amounts listed on the lump sum agreement, with the exception of the translator fee. Four months later, the office of employee's counsel contacted the insurer about payment of the fee; counsel's office was informed that the insurer had never received a bill for the translating services. The insurer assured that payment would be made upon receipt of the bill. On October 13, 1994, Benoit sent a copy of the appropriate invoice to the insurer, and it immediately issued a check for the $85.00 fee. (Dec. 3-4.) Based on these undisputed facts, the judge denied the employee's request for a § 8 (1) penalty for late payment of the $85.00 translator fee. (Dec. 9.)
The judge's denial of the claim under § 8 (1) penalty is correct. Section 8 (1) provides in pertinent part:
Any failure of an insurer to make all payments due an employee under the terms of an order, decision, arbitrator's decision, approved lump sum or other agreement . . . within fourteen days of the insurer's receipt of such document, shall result in a penalty of two hundred dollars, payable to the employee to whom such payments were required to be paid by the said document; provided, however, that such penalty shall be one thousand dollars if all such payments have not been made within forty-five days, two thousand five hundred dollars if not made within sixty days, and ten thousand dollars if not made within ninety days.
In Diaz v. Western Bronze Co., 9 Mass. Workers' Comp. Rep. 528 (1995), we determined that the phrase "payments due an employee," to which a penalty may apply pursuant to § 8 (1), includes only those monies that are paid directly to the employee. It does not include payments made directly to medical providers. Id. at 530.
In subsequent cases we extended that decision, concluding that § 8 (1) does not apply to late payment of attorney's fees, seeCordeiro v. Friendly Ice Cream, 10 Mass. Workers' Comp. Rep. 478, 480 (1996), and to costs to be paid to the employee's attorney.Ngo v. Jeffco Fibres Inc., 10 Mass. Workers' Comp. Rep. 286 (1996), appeal docketed, No. 96-P-1658 (Mass.App.Ct.) The payment of a fee for translating services made directly to the provider falls within the Diaz rule. We affirm the judge's denial of the claim for a penalty.
Having denied the § 8 (1) penalty, the judge went on to address the insurer's complaint for § 14 (1) assessment of costs for the employee's having brought the § 8 (1) claim "without reasonable grounds." (Dec. 6-7.) The judge concluded that, in light of Diaz, which was issued on September 11, 1995, the question of law pursued by the employee was indisputably settled, and that the appropriate action would have been for the employee to withdraw the claim prior to the February 13, 1996 hearing. (Dec 7.) Therefore, the judge assessed employee's counsel the whole cost of the proceedings as provided in § 14 (1) of the Act. (Dec. 9-10.)
We do not agree with the judge that § 14 sanctions are due in the present case. Prior to the present action, we had not addressed the specific issue of whether a translator's fee is a "payment due the employee." Similar situations do not perforce preclude distinction. Section 14 sanctions should be cautiously imposed. See, e.g., Buchanon v. M. Demos Sons, 2 Mass. Workers' Comp. Rep. 21, 22 (1988). Dipace v. Ingalls Cronin, 7 Mass. Workers' Comp. Rep. 125, 126 (1993). Furthermore, the holdings inDiaz and its progeny have yet to be addressed by our appellate courts. We therefore reverse that part of the decision which assesses § 14 costs against the employee's counsel.
Affirmed in part; reversed in part.
So ordered.
____________________________ Frederick E. Levine Administrative Law Judge
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
FEL/kai Filed: July 7, 1997