Associated Industries of Massachusetts Mutual Insurance Company v. Hough (Lawyers Weekly No. 11-137-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑1927                                       Appeals Court   ASSOCIATED INDUSTRIES OF MASSACHUSETTS MUTUAL INSURANCE COMPANY  vs.  SHAWN HOUGH. No. 12‑P‑1927. Middlesex.     September 10, 2013.  ‑  November 19, 2013. Present:  Rapoza, C.J., Wolohojian, & Milkey, JJ.   Workers’ Compensation Act, Attorney’s fees.  Practice, Civil, Attorney’s fees.       Civil action commenced in the Superior Court Department on July 21, 2008.   A motion for attorney’s fees and costs was heard by S. Jane Haggerty, J.     Teresa Brooks Benoit for the defendant. Holly B. Anderson for the plaintiff.     MILKEY, J.  Pursuant to G. L. c. 152, § 11D(3), an insurer brought an action in Superior Court against Shawn Hough, seeking to recoup excess workers’ compensation benefits it had paid to him.  Hough successfully defended against that action, and the sole question raised by this appeal is whether he is thereby entitled to attorney’s fees.  Because we agree with the Superior Court judge that the answer is “no,” we affirm.   Background.  Hough was employed by Athol Table, LLC.  Based on a 2002 workplace incident, Hough sought workers’ compensation benefits.  By decision dated September 29, 2006, an administrative judge of the Department of Industrial Accidents (DIA) ultimately ruled in favor of the employer’s insurer, Associated Industries of Massachusetts Mutual Insurance Company (insurer).  Although the administrative judge determined that Hough suffered from a permanent disability, she concluded that he failed to demonstrate that his disability was causally related to the 2002 incident.  Hough initially pursued, but then abandoned, an appeal.  Accordingly, the correctness of the administrative judge’s decision is not before us. Subsequent to the administrative judge’s decision, the insurer filed an action in Superior Court pursuant to G. L. c. 152, § 11D(3), seeking to recoup the partial incapacity benefits that it had been ordered to pay by an earlier conference order.  After trial, a Superior Court judge allowed Hough’s motion for a required finding based on his inability to pay.  The insurer does not challenge that ruling; in fact, the insurer acknowledged Hough’s inability to pay after the close of evidence. Having successfully defended against the recoupment action, Hough argued that he was entitled to attorney’s fees.  Unable to identify a statute that expressly authorizes fee shifting in this specific context, Hough relied “by analogy” on various fee-shifting provisions set forth in G. L. c. 152, the workers’ compensation act (act).  Discerning no statutory basis […]

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