This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Ramona Richards (employee) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), which affirmed an administrative judge's dismissal of the employee's claim and the judge's award of costs, including attorney's fees, against the employee's attorney pursuant to G. L. c. 152, § 14(1). On appeal, the employee argues that (1) res judicata does not bar her claim, and (2) her attorney did not bring her claim " without reasonable grounds" for the purposes of G. L. c. 152, § 14(1). We affirm.
Because the primary issue on appeal is whether the doctrine of res judicata barred the employee's claim, we recite the procedural background in some detail. In May, 2005, the employee filed a workers' compensation claim, which was heard by the administrative judge in July, 2006, and decided in a written decision dated June 13, 2007 ( Richards I ). The judge concluded:
" The employee has failed to meet her burden of proof that she sustained an injury arising out of and in the course of her employment on December 5, 2003. Although I credit her testimony that she was lifting boxes on that date, and felt a pain in her back and left ribs, I find she was not credible as to the reason for her leaving her employment. The medical evidence of her own treating physicians does not support disability from employment."
The board summarily affirmed the decision, and we subsequently affirmed the board in an unpublished memorandum and order pursuant to our rule 1:28. Richards's Case, 74 Mass.App.Ct. 1112, 906 N.E.2d 368 (2009). The employee did not seek further appellate review.
However, the employee, claiming subsequent periods of disability, attempted three times thereafter to pursue again claims stemming from the same workplace event. Each time, a conciliator withdrew the claim as barred by res judicata.
In January, 2012, the employee presented her claim a fourth time based on a different period of disability. A conciliator again withdrew the claim, and the employee appealed to the senior judge. Based on the isolated phrase in Richards I that " I [the administrative judge] credit her testimony that she was lifting boxes on that date [December 5, 2003], and felt a pain in her back and left ribs," the senior judge concluded that " the liability door [had been left] open for the employee to pursue a future claim should she suffer a period of disability that is supported by sufficient medical evidence." The senior judge accordingly allowed the claim to proceed. Nonetheless, the senior judge also stated that, " [i]f the administrative judge determines that counsel has proceeded without reasonable grounds, especially given the extensive appellate history in this matter, § 14 sanctions remain available."
The same administrative judge who had heard and decided Richards I held a de novo hearing on the new claim. In a decision issued on April 29, 2013, the judge determined that the claim was barred by res judicata. He reasoned that although he had previously credited the employee's testimony about feeling a " pop" in her back, he had found there was " no dispositive medical evidence" that the " pop" was due to a " change or lesion," as required to constitute a compensable workplace injury. The judge found that he had unambiguously determined in Richards I that the employee had not sustained a compensable injury. Concluding that the most recent claim was brought " without reasonable grounds," the judge assessed the costs of the most recent proceeding against the employee's attorney.
The board affirmed the judge's decision on a number of different bases. First, the board rejected the employee's argument that res judicata did not apply because the language of Richards I was ambiguous. The board noted that no claim of ambiguity had been made on appeal from Richards I, and no further appellate review had been sought after we affirmed that decision. Second, the board observed that the employee failed to address the rulings of law made in Richards I or her own statements in her appeal from that decision, in which she conceded that the administrative judge Richards I had found no compensable injury. Third, the board further concluded that the senior judge's ruling, without more, could not provide reasonable grounds to pursue the new claim. It therefore affirmed the imposition of costs.
" The workers' compensation statute directs that review of a decision of the board is to be in accordance with G. L. c. 30A, § 14 (7)( a )-( d ), ( f ), and ( g )." DiFronzo's Case, 459 Mass. 338, 341, 945 N.E.2d 350 (2011), citing G. L. c. 152, § 12(2). " We may thus reverse or modify the board's decision when, inter alia, it is 'based upon an error of law' or is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in ...