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Magnolia Rivera's Case

Appeals Court of Massachusetts

July 1, 2015

Magnolia Rivera's Case

Editorial Note:

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

The employee's attorney, James N. Ellis, Sr., appeals from a decision of the reviewing board of the Department of Industrial Accidents (department) affirming the 2011 order of an administrative judge, which assessed penalties under § 14(1) of the Workers' Compensation Act (the Act), G. L. c. 152, for bringing a claim without reasonable grounds. We affirm.

Background.

The employee sustained an industrial injury in 2003 for which she received weekly benefits from May 21, 2005, until September 13, 2005, based on the administrative judge's finding of partial disability.[1] In terminating benefits, the judge adopted the opinion of an impartial medical examiner, Dr. Richard Renaud, who concluded that although the employee continued to present with chronic back pain, there was no longer a causal connection between her clinical state at the time of the evaluation (September 13, 2005) and the industrial accident.

In 2008, Attorney Ellis, on behalf of the employee, filed a § 36 claim for loss of function benefits, relying on the independent medical opinion of Dr. Erroll Moriner, who evaluated the employee in March, 2008. The administrative judge denied the claim following a conference under § 10A of the Act.[2] Attorney Ellis timely filed an appeal of the conference order, on which he wrote that both parties opted out of the G. L. c. 152, § 11A, impartial medical examination procedure (which is required for claims involving disputes over medical issues). However, the conference order does not indicate that the parties opted out of the procedure, and the insurer promptly responded to the appeal with a letter advising the judge that it had not.

Attorney Ellis subsequently filed a motion to opt out of the impartial examination, asserting that there was no medical evidence disputing the claim because Dr. Renaud's report, on which the insurer relied, addressed disability but not loss of function; the judge denied this motion. Approximately one week later, Attorney Ellis wrote a letter to the judge again arguing that a § 11A examination was not required and noting that the employee would " not be paying for the fee for an impartial examiner." [3]

In September, 2009, Attorney Ellis wrote to a senior judge of the department requesting a full hearing on the claim even without an impartial examination (on the basis that there was no medical issue in dispute). The parties were informed that a hearing would not be scheduled as the opt out procedures outlined in 452 Code Mass. Regs. § 1.10(9) (2008) had not been satisfied; [4] they were further advised of the employee's right to petition the department Commissioner to file a late fee (and then participate in an examination) in order to perfect the appeal, and that the claim would be procedurally dismissed unless she did so. It is undisputed that the employee did not file for a late appeal or pay the applicable fee, and the matter was indeed administratively withdrawn. In June, 2010, Attorney Ellis wrote to the Commissioner objecting to the administrative withdrawal, and the insurer responded by letter to the Commissioner. A senior judge responded on behalf of the Commissioner advising that " a filing fee was required in this matter as the case does involve medical issues" and confirming the basis for the administrative withdrawal.

In August, 2011, Attorney Ellis filed a second, and identical, claim on behalf of the employee, under § 36(1)(j) of the Act. The insurer then raised claims for penalties against Attorney Ellis under G. L. c. 152, § 14(1), (2). On the preconference memorandum cover form, Attorney Ellis marked that no impartial examination was needed, but the judge indicated on the form that the examination was in fact required. Following the conference, the judge denied the claim, specifically " find[ing] that there exists a medical issue in dispute and that there will be a § 11A examination." She reserved the § 14 issues for hearing. Attorney Ellis filed a timely appeal of the conference order, again indicating that there was " no medical dispute," despite the judge's finding to the contrary. The next day, Attorney Ellis also filed a second motion to opt out of the impartial examination, which the insurer opposed and the judge denied. The employee failed to take action to preserve her rights on this appeal as well.

Following a motion by the insurer to file a late appeal, a hearing was held in November, 2012, on the insurer's § 14 claims. The judge found that Attorney Ellis filed the 2011 claim without reasonable grounds and in violation of § 14(1) because he failed to comply with the administrative judge's rulings and directives related to the § 11A examination, and she assessed the whole cost of the proceedings against him. She found, however, that his actions did not rise to the level of a violation of § 14(2). The reviewing board affirmed, finding it unnecessary to reach any of the employee's proffered theories regarding her § 36 claim, as she had not preserved her right to a hearing, and concluding that the judge's assessment under § 14(1) was appropriate. This appeal followed.[5]

Discussion.

As a threshold matter, we note that the case is presented as an appeal by the employee of the reviewing board decision, in which the employee argues that the board erred in affirming both the administrative withdrawal of the 2011 § 36 claim and the § 14(1) penalties against Attorney Ellis. However, because the appeal of the administrative judge's denial of the 2011 claim is precluded by the employee's failure to appeal the withdrawal of the original 2008 claim (and because neither the administrative judge nor the reviewing board addressed the withdrawal of the § 36 claim),[6] the only issue before us is the § 14(1) claim. We therefore treat this only as an appeal by Attorney Ellis of the § 14(1) penalties for bringing a claim without reasonable grounds.[7]

" [A]n agency's interpretation of its own rule is entitled to great weight," Gonzalez's Case, 41 Mass.App.Ct. 39, 41, 668 N.E.2d 373 (1996), quoting from Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478, 349 N.E.2d 346 (1976), and " [w]e may set aside the board's decision only if it is infected with error under G. L. c. 30A, § 14(7)( a )-( d ), ( f )-( g )." Murphy's Case, 53 Mass.App.Ct. 708, 711, 761 N.E.2d 998 (2002). For the reasons that follow, we agree with the reviewing board that " [d]espite the fact that the same claim had been denied a year earlier, the employee's counsel insisted upon proceeding with the second claim without any reasonable grounds to do so" and the " assessment of costs [against Attorney Ellis] was thus appropriate pursuant to § 14(1)."

First, we discern no merit in Attorney Ellis's contention (on which his other arguments rely) that, because the insurer proffered no medical evidence to contradict the employee's evidence of a permanent loss of function, there was no " dispute over medical issues." This argument misconstrues the plain language of G. L. c. 152, § 11A,[8] and 452 Code Mass. Regs. § 1.02 (2008). [9] The employee's claim was for specific compensation related to her alleged permanent loss of function from a back injury (which is a medical issue). Regardless of the nature or strength of evidence presented at the conference, the claim was a " dispute over medical issues" (as opposed to a dispute over nonmedical issues, such as attorney's fees or death). The ...


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