Opinion
11-P-1073
05-01-2012
THADDEUS STEPIEN'S CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Thaddeus Stepien, appeals from a decision of the reviewing board of the Department of Industrial Accidents summarily affirming the administrative judge's award of reduced attorney's fees in the amount of $3,500 pursuant to G. L. c. 152, § 13A(5). On appeal, he contends that the judge abused his discretion in reducing the amount of attorney's fees and denied the employee due process of law in declining to hear testimony and take evidence on the question of attorney's fees. We affirm.
Background. In 1987, the employee sustained an injury during the course of his employment with Washburn Garfield Corporation when a large pipe fell on his foot. The insurer, Lumberman's Mutual Casualty Company, accepted liability and the claim was resolved via a lump sum settlement.
In 2009, the employee filed a new claim seeking benefits pursuant to G. L. c. 152, §§ 13 & 30, for knee-replacement surgery. The insurer initially denied liability. At a conference conducted pursuant to G. L. c. 152, § 10A, an administrative judge of the Department of Industrial Accidents denied the employee's claim, and the employee timely appealed. At the de novo hearing, the insurer accepted the employee's claim and agreed to pay for the surgery.
The employee requested an increased award of attorney's fees on a 'quantum meruit' basis and sought an evidentiary hearing on the issue. The administrative judge declined to conduct such a hearing, but heard argument from the employee's counsel on the question. In August 2010, the administrative judge issued a decision noting the insurer's acceptance of liability and awarding a reduced counsel fee of $3,500. The employee appealed to the reviewing board, which summarily affirmed, and this appeal followed.
In his decision, the administrative judge stated that 'in light of the Employee's counsel['s] failure to fully comply with the Insurer's request for medical records at conference; the Insurer's offer to pay the Employee's claim after a twenty-three year absence with minimal supporting medical evidence; and the nominal effort by the attorney at Hearing, I find that an attorney fee of $3,500.00 is appropriate.'
Discussion. a. Propriety of reduced award of attorney's fees. We disagree with the employee's argument that the judge abused his discretion in reducing the award of attorney's fees.
'[W]here, as here, the reviewing board summarily affirms and adopts without change the findings and decision of an administrative judge, a reviewing court 'must look to that decision to determine whether the action of the board [was] correct." Coggin v. Mass. Parole Bd., 42 Mass. App. Ct. 584, 587 (1997), quoting from Nowak's Case, 2 Mass. App. Ct. 498, 499 (1974). In this case, our review under G. L. c. 30A, § 14(7)(a)-(d), (f) and (g), requires us to determine whether the judge abused his discretion in the award of fees. We therefore ask 'whether the decision is factually warranted and not '[a]rbitrary or capricious,' in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute.' Scheffler's Case, 419 Mass. 251, 258 (1994).
General Laws c. 152, § 13A(5), as appearing in St. 1991, c. 398, § 35, which applies to the award of attorney's fees in this case, see Green's Case, 52 Mass. App. Ct. 141, 143 (2001), provides that the 'administrative judge may increase or decrease such fee based on the complexity of the dispute or the effort expended by the attorney.' Here, the administrative judge found that, given the failure on the part of the employee's counsel to produce medical records in a timely manner, the employer's prompt acceptance of liability, and the minimal effort expended by the employee's counsel, a reduced award was appropriate. These findings, which are supported in the record, clearly substantiate the administrative judge's decision to reduce the award of attorney's fees in accordance with the statutory factors, and there was no abuse of discretion. See Scheffler's Case, supra.
b. Employee's due process claim. We are not persuaded by the employee's argument that he was denied due process of law when the administrative judge declined to hear testimony or take evidence on his counsel's request for increased attorney's fees.
The case cited by the employee in support of this argument, Gaetani v. Fluors Constructors, Inc., 7 Mass. Workers' Comp. Rep. 384 (1993), is inapposite. Moreover, the administrative judge, having observed counsel at the hearing, and being familiar with the issues presented in this case, had firsthand knowledge of 'the complexity of the dispute [and] the effort expended by the attorney,' allowing him to set an appropriate fee. G. L. c. 152, § 13A(5). See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 630-631 (1978). And while '[c]onstitutional due process requirements apply to board hearings and decisions,' Haley's Case, 356 Mass. 678, 682 (1970), the judge is not required to conduct a full evidentiary hearing regarding an award of fees that G. L. c. 152, § 13A(5), grants him discretion to increase or reduce. See Doyle v. Dept. of Industrial Accs., 50 Mass. App. Ct. 42, 45-46 (2000).
Decision of reviewing board affirmed.
By the Court (Graham, Grainger & Hanlon, JJ.),