Opinion
16-P-610
03-21-2017
Carole EVANGELISTA'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Once again we are presented with an appeal involving a fee dispute with Attorney James N. Ellis, Sr. In this dispute between Ellis and successor counsel, the client, Carole Evangelista, claims that because she prevailed before the reviewing board (board) of the Department of Industrial Accidents (department), and the board concluded that Ellis's administrative appeal was brought without reasonable grounds, the "whole cost of the proceedings" should have been assessed against Ellis pursuant to G. L. c. 152, § 14(1), rather than the statutory amount of $1,618.19 pursuant to G. L. c. 152, § 13A(6). We agree and remand for further determination of the whole cost of the proceedings.
"In the past five years alone, Ellis or his legal assistants ... have filed over one hundred and fifty workers' compensation appeals in this court." Ellis v. Commissioner of the Dept. of Industrial Accs ., 88 Mass. App. Ct. 381, 382 (2015). "Ellis's attorney's fees and expenses frequently have been the main subject in these appeals. In a series of these cases, Ellis has been sanctioned for filing frivolous appeals and, similarly, for presenting frivolous claims involving fees and expenses before the department."Id . at 382-383.
Ellis also appealed, claiming the board erred when it affirmed the administrative judge's decision denying his motion for recusal based on an allegation of bias. Ellis moved to withdraw his appeal prior to argument. That motion was allowed.
Background . The fee dispute arose between two attorneys who represented Evangelista in connection with a workers' compensation claim before the department. Evangelista and the workers' compensation insurer entered into a lump sum settlement agreement for $50,000, $16,103.10 of which was held in escrow for attorney's fees and expenses. When Ellis, Evangelista's first attorney, and his successor, Attorney Steven Buckley, could not agree on how the attorney's fees and expenses should be divided, Buckley filed a third-party claim requesting that the administrative judge (AJ) resolve the dispute.
Ellis filed a motion requesting that the AJ recuse himself, claiming that the AJ was biased against him. Ultimately, after a hearing on the motion, which Ellis chose not to attend, the AJ denied the motion to recuse and ordered the insurer to release to Evangelista and Buckley the funds held in escrow.
Ellis appealed to the board, again claiming bias by the AJ. The board affirmed the AJ's decision, concluding that "there is no legal justification for Ellis's conduct" and the appeal lacked "reasonable grounds." Without indicating that it had considered evidence regarding the whole cost of the proceedings, the board ordered Ellis to pay Evangelista's successor counsel $1,618.19, the "fair approximation of the cost of the appellate proceeding" under G. L. c. 152, § 13A(6).
Discussion . The narrow question before us is whether, after concluding that Ellis appealed the AJ's decision "without reasonable grounds" pursuant to G. L. c. 152, § 14(1), the board properly determined the "whole cost of the proceedings" under that section by applying the statutory amount set forth in G. L. c. 152, § 13A(6). We review the board's decision to determine whether it is " 'based upon an error of law' or is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.' " DiFronzo's Case , 459 Mass. 338, 341 (2011), quoting from G. L. c. 30A, § 14(7)(c ), (g ).
General Laws c. 152, § 14(1), as appearing in St. 1991, c. 398, § 36, provides, in relevant part, that "[i]f any administrative judge ... determines that any proceedings have been brought or defended by an employee or counsel without reasonable grounds, the whole cost of the proceedings shall be assessed against the employee or counsel, whomever is responsible." In light of Ellis's withdrawal of his appeal to this court, there is no dispute before us regarding the board's conclusion that Ellis advanced his appeal to the board without reasonable grounds. Therefore, Evangelista was entitled to recover the whole cost of the proceedings.
The board assessed $1,618.19 against Ellis as the whole cost of the proceedings pursuant to G. L. c. 152, § 13A(6). In summary fashion, the board reasoned that "[t]he legislature has determined that the fee authorized by § 13A(6) is a fair approximation of the cost of the appellate proceeding." On the record before us, we are not persuaded that this reasoning was sound.
In a case involving statutory construction, "[w]e accord substantial deference to the interpretation of a statute by the agency charged with primary responsibility for its administration, although ultimately the duty of statutory interpretation is for the courts." DiFronzo's Case , 459 Mass. at 341-342 (quotation omitted). As with every statutory analysis, our interpretation of G. L. c. 152, § 13A(6), begins with the plain language of the statute. See International Fid. Ins. Co . v. Wilson , 387 Mass. 841, 853 (1983). Where "the language is clear and unambiguous, it is conclusive as to the intent of the Legislature." Deutsche Bank Natl. Trust Co . v. Fitchburg Capital, LLC , 471 Mass. 248, 253 (2015).
With these principles in mind, we turn to the text of the statute upon which the board relied. General Laws c. 152, § 13A(6), as appearing in St. 1991, c. 398, § 35, provides:
"Whenever an insurer appeals a decision of an administrative judge and the employee prevails ..., the insurer shall pay a fee to the employee's attorney in the amount of one thousand dollars, plus necessary expenses. An administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney." (Emphasis supplied.)
General Laws c. 152, § 13A(10), provides that the statutory amount in § 13A(6), $1,000, be adjusted annually.
We discern no ambiguity in the plain language of this statute. It applies to appeals brought by insurers. This appeal was not brought by an insurer, but by Ellis, a private attorney disputing the allocation of attorney's fees and costs in a settled case. We conclude, therefore, that in this context the application of G. L. c. 152, § 13A(6), was error, and that $1,618.19 may not have been the "whole cost of the proceedings." Accordingly, we remand this matter to the board to determine the whole cost of the proceedings before the board.
For the same reason, Evangelista's argument that, pursuant to G. L. c. 152, § 8(1), a $10,000 fine should be levied against Ellis, fails. See G. L. c. 152, § 8(1), as appearing in St. 1991, c. 398, § 23:
"Any failure of an insurer to make all payments due ... shall result in a penalty of ... ten thousand dollars if not made within ninety days" (emphasis supplied).
Appellate attorney's fees . Evangelista has requested reasonable attorney's fees and costs related to this appeal. Having prevailed, she is entitled to recover the fees and costs. G. L. c. 152, § 12A. See Spaniol's Case , 466 Mass. 102, 111-112 (2013). Evangelista may submit an application for fees and costs, with supporting documentation, within fourteen days of the date of the rescript of this decision. Fabre v. Walton , 441 Mass. 9, 10-11 (2004). Ellis will be afforded fourteen days thereafter to respond.
Conclusion . So much of the decision of the reviewing board as ordered payment of $1,618.19 to successor counsel is vacated, and the matter is remanded to the board for further proceedings consistent with this memorandum and order. In all other respects, the decision of the reviewing board is affirmed.
So ordered .
Vacated and remanded in part; affirmed in part .