FISCHEL, J.
On March 27, 1991, Bernard Palazzolo sustained a low back injury arising out of and in the course of employment as a cold foods service clerk for the Stop and Shop companies (employer). (Dec. 2). The self-insurer commenced payment of temporary total incapacity benefits pursuant to § 34, and subsequently filed a complaint for modification or discontinuance. On September 11, 1992, an order was filed authorizing the self-insurer to discontinue payment of weekly compensation. The employee appealed from the conference order but failed to file the fee required pursuant to § 11A when a claim involves disputed medical issues. That statute provides, in pertinent part, that:
At conference on September 10, 1992, counsel for the self-insurer was present, but neither the employee nor anyone representing the employee appeared at the conference. (Dec. 2). In his brief, counsel for the employee asserts that the employee was pro se at the time of conference.
When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to § 10A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. The insurer or any claimant represented by counsel who files such appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the medical examination under this appeal section within ten days of filing said appeal. . . .
Notwithstanding that the employee had failed to perfect his appeal, the department notified the parties as to a hearing date on the employee's appeal. (Dec. 3) In lieu of hearing, the judge convened a status conference on March 22, 1994, and informed the parties that in the absence of the § 11A fee he was without jurisdiction to hear the employee's appeal. (Dec. 4)
In his brief, counsel for the employee alleges that the fee was not filed "insofar as the Employee was indigent and did not have the financial ability to file a fee for a Medical Impartial Examination which at the time of Appeal was equal to the state average weekly wage." (Employee's brief p. 2).
At the March 22, 1994 conference the judge directed employee's counsel to file with the Commissioner a petition to enlarge time for submission of the fee required under § 11A. (Dec. 4) The judge subsequently received from the self-insurer a motion to dismiss with prejudice for lack of prosecution. (Dec. 4) The employee appends to his brief an undated motion in opposition to the self-insurer's motion, which he maintains was timely filed. (Employee's brief, p. 2)
In his brief, the employee contends that he tendered a check for the § 11A fee in May 1994 prior to the dismissal of the case by the administrative judge. (Employee's brief, p. 3) He appends to this appeal a copy of a check for $350.00 dated May 5, 1994, payable to the Commonwealth of Massachusetts, as well as a copy of the Commissioner's May 12, 1994 denial of the petition to late file the § 11A fee.
On May 9, 1994 the administrative judge filed a decision which denied and dismissed the employee's claim for further benefits for lack of prosecution. (Dec. 6). The employee sought review.
The employee appealed to the Review Board, and filed a new claim seeking to have his benefits reinstated. The matter was conciliated for conference on October 13, 1994. At that time, the self-insurer brought a Motion for Stay of Conference Proceeding pending a decision by the Reviewing Board on the employee's appeal.
When the administrative judge denied and dismissed this claim he did so without benefit of the decision in Neff v. Commissioner of the Dept. of Indus. Accidents, 421 Mass. 70 (1995). In Neff, the Supreme Judicial Court concluded that: "consistent with the intent of Legislature, the workers' compensation statute implicitly confers on the commissioner the authority to grant waivers of the impartial medical examination fee required by G.L.c. 152, § 11A, for indigent claimants, even those represented by attorneys." Id. at 76-77. Had the employee known that a waiver of the fee was possible in cases of indigency, it is clear from the record that he would have sought this waiver. The employee must now be given that opportunity.
The judge who presided over this case no longer serves the department. Accordingly, we return this case to the senior judge for action consistent with the Supreme Court's decision in Neff, supra. So ordered.
____________________________ Carolynn N. Fischel Administrative Law Judge
____________________________ William A. McCarthy Administrative Law Judge
____________________________ Sara Holmes Wilson Administrative Law Judge
Filed: November 14, 1995