Opinion
No. 15–P–1446.
10-04-2016
John DEMERS'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Twenty seven years ago, James N. Ellis, Jr., represented John Demers (employee), in a matter before the Department of Industrial Accidents (department), respecting a compensation claim for injuries allegedly sustained on the job in 1987. The employer, The Weetabix Company, Inc., and its insurer, Ace American Insurance Company, contested the employee's claims for benefits.
After making payments, the insurer filed a request to discontinue benefits, asserting that the employee was not disabled and was in fact healthy and able to return to work. Initially, an administrative judge of the department issued a conference order (dated November 2, 1989), denying the request. The insurer and the employer appealed from the conference order. Subsequently, after a de novo hearing, the same judge found in favor of the insurer, authorizing the discontinuation of temporary total incapacity benefits (July 30, 1991, decision). In so ruling, the administrative judge did not award attorney's fees or costs. Ellis, on behalf of the employee, appealed to the reviewing board (board) of the department but did not assign as error the failure of the administrative judge to award fees or costs; also, with new counsel, the employee filed a separate appeal with the board. The board affirmed the July 30, 1991, decision.
This court affirmed the decision of the board. See Demers's Case, 38 Mass.App.Ct. 1116 (1995).
In 2008, the Ellis renewed his efforts to obtain fees and costs, under G.L. c. 152, § 13A, in connection with the same workers' compensation case. After a hearing, a different administrative judge ruled that the petitioner's claim was untimely and ill-based. The hearing judge decided that “the only avenue for [an award] of fees associated with the [July 30, 1991] Decision ... would be a request for an amendment after the decision [had issued] or in the [related] appeal itself.” The board summarily affirmed.. Ellis has appealed to this court, see G.L. c. 152, § 12(2), arguing that the administrative judge abused his discretion and erred as a matter of law in denying an award of costs and fees in a case where the employee had “prevailed” under G.L. c. 152, § 13A(5). We affirm.
Ellis also sought interest (on his claim for fees and costs) pursuant to G.L. c. 152, § 50.
In doing so, the board cited as authority: Orlofski v. Wales, 28 Mass. Workers' Comp. Rep. 13, 16–17 (2014).
Ellis also contends that his claim was timely pursued and procedurally sound.
Substantially for the reasons stated by the administrative judge, Ellis's claim for fees and costs was not only untimely but barred, as a matter of law, by Ellis's failure to preserve his rights vis-à-vis an alleged entitlement to an award under G.L. c. 152, § 13A. Ellis's appeal is without merit.
The decision of the reviewing board is affirmed.