Opinion
No. 11–P–1693.
2012-11-16
Shawn HOUGH'S CASE.
By the Court (VUONO, SIKORA & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Shawn Hough, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) affirming an administrative judge's denial of worker's compensation benefits. We discern no error in the conclusion reached by the administrative judge that the employee's claim is barred by the doctrine of res judicata and, therefore, we affirm.
Hough was working as a shipper/receiver at Athol Table, LLC, when he injured his right shoulder on December 3, 2002. The insurer, Aim Mutual Insurance Company (insurer), accepted liability and paid Hough benefits pursuant to M.G.L.c. 152, § 34, until Hough resumed working a forty-hour week in November of 2003. About four months later, Hough was laid off as part of a general reduction in the work force. He subsequently filed a claim for benefits based on the December 3, 2002, injury and was awarded partial incapacity benefits at the section 10A conference. Hough appealed and, pursuant to G.L.c. 152, § 11A, was examined by an impartial examiner, Doctor George Lewinnek, on November 7, 2005.
Dr. Lewinnek found that the industrial injury suffered on December 3, 2002, had resolved. He explained that although Hough was currently disabled due to an “impingement syndrome in his right shoulder,” the disability was caused by a preexisting degenerative condition and not by the work injury. After a hearing, the administrative judge adopted Dr. Lewinnek's opinion and dismissed the claim on the ground that Hough had failed to establish a causal relationship between his industrial injury and his impingement syndrome. Hough appealed, but the appeal was dismissed for failure to submit a timely brief.
Approximately two years after the hearing decision was issued, Hough filed a second claim for benefits, which was denied at conference by a different administrative judge. Hough appealed, and underwent a second impartial medical examination on July 5, 2009. The exam was conducted by Doctor Hwa Hsin Hsieh, who generally agreed with the physical findings of the prior examination, namely that Hough suffered from impingement syndrome. On the issue of causation, however, Dr. Hsieh opined that Hough's impingement syndrome was causally related to Hough's work injury and Hough's current pain was due to the impingement.
Dr. Hsieh also diagnosed Hough with rotator cuff tendonitis, but noted that this was not a distinct diagnosis but the “same thing.”
After a hearing, the second administrative judge concluded that because the issue of causation had been fully and fairly tried at the first hearing, and the medical evidence, while different, was not newly discovered or unavailable at the time, the doctrine of res judicata barred the present claim. The judge also rejected Hough's claim that he was entitled to relitigate original causation and disability based on a worsening of his condition under G.L.c. 152, § 16. As noted, the board affirmed the second hearing decision.
Hough does not question whether the doctrine of res judicata applies to worker's compensation cases. See Martin v. Ring, 401 Mass. 59, 60–63 (1987).
The board's application of the doctrine of res judicata to the facts and circumstances of this case was appropriate and compels the dismissal of Hough's second claim for benefits. As the board observed, the first adjudication of Hough's claim for right shoulder impingement syndrome was “(1) between the same parties, (2) touching the same subject matter and (3) decided adversely to the party seeking to litigate the subject matter again.” See New England Home for Deaf Mutes v. Leader Filings Stations Corp., 276 Mass. 153, 157 (1931).
Hough's remaining argument, that the impartial examiner in the first hearing (Dr. Lewinnek) was biased, is not before us. As the board noted, that claim had been advanced and rejected by the administrative judge at the first hearing, which was not appealed.
At the first hearing, Hough failed to establish the existence of a causal relationship between his industrial injury and his impingement syndrome. He then failed to pursue his appeal of that decision. Thus, the fact that Hough's impingement syndrome was not related to his employment became the law of the case.
We also reject Hough's assertion that G.L.c. 152, § 16, permits him to relitigate the issue of causation. Hough argues that § 16 “abrogates the normal principals [sic] of res judicata in claims for further compensation where initial liability has been established.” However, the worsening of Hough's nonwork-related condition does not alter the fact that the issue of causation was settled at the first hearing. Furthermore, the plain language of the statute defeats Hough's argument. Section 16 provides for further hearings when an employee's incapacity is the result of “an injury for which he received compensation.” See G.L.c. 152, § 16. Here, however, Hough did not receive compensation for right shoulder impingement syndrome. This fact, as the second judge noted, precludes the right shoulder impingement syndrome from qualifying as a potentially compensable “injury or disease” under the statute.
We concur with the board's reliance on its decision in Suliveres's v. Durham School Serv., 24 Mass. Worker's Comp. Rep. 49, 53 n. 8 (2010), affirmed by our court in an unpublished order pursuant to Rule 1:28, Suliveres's Case, 78 Mass.App.Ct. 1126 (2011). In that case the board stated: “A mere showing that a condition, already determined in a final judgment on the merits to be non-work related, has worsened, is wholly insufficient to defeat the application of res judicata or collateral estoppel.”
We now turn to the insurer's request for appellate attorney's fees and costs. See Mass. R.A.P. 25, as appearing in 376 Mass. 949 (1979). We conclude that this appeal has no merit and qualifies as frivolous within the meaning of rule 25. Within fourteen days of the date of this rescript, the insurer shall submit documentation in support of its request. Counsel for the appellant shall file any opposition to the requested amount within fourteen days thereafter.
The insurer did not make a written request for attorney's fees and costs in its brief, but did so at oral argument and subsequently supplemented its request in a timely filed letter pursuant to Mass. R.A.P. 16(f), 365 Mass. 860 (1974). See Hug v. Gargano & Assocs., P.C., 76 Mass.App.Ct. 520, 529 (2010).
Additionally, we take the opportunity to observe that in the field of worker's compensation litigation, the attorney typically knows far better than the client when an appeal is frivolous. Often, it is the attorney and not the client who is the perpetrator of wasted time and effort for both the opposing party and the administrative and judicial decision makers. We repeat our warning that we will not hesitate to award attorney's fees and costs against counsel in appropriate cases. See Worcester v. AME Realty Corp., 77 Mass.App.Ct. 64, 72–74 (2010).
Decision of reviewing board affirmed.