Opinion
16-P-527
01-26-2017
Edgar GIRALDO'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee applied for worker's compensation benefits. Because his claim had been raised and denied previously by the reviewing board of the Department of Industrial Accidents (department), a department conciliator administratively withdrew the claim without reaching the merits. That decision was upheld by a senior administrative judge. The employee commenced an action pursuant to G. L. c. 30A, seeking review of that decision. A Superior Court judge allowed a motion for judgment on the pleadings and ordered the entry of a judgment which affirmed the department's administrative withdrawal of the employee's claim for worker's compensation benefits. We affirm.
The employee was injured at work in 2003 and received weekly compensation benefits until 2008, when his benefits were terminated as a result of an adverse ruling by an administrative judge indicating that he was no longer disabled. In January, 2009, the employee filed a new claim, seeking disfigurement benefits arising from the same 2003 injury. The administrative judge ordered an impartial medical examination in that claim, and the employee filed an appeal from that order. The employee failed to pay the fee for that appeal and it was then administratively withdrawn. The employee contested the withdrawal by letter, but never sought further review of the decision, either at the department or in the courts. In 2011, the employee filed another disfigurement claim, along with a penalty claim against the insurer, based on the same injury. At conference, an administrative judge denied the claim, concluding it was precluded by the earlier claim from which no appeal had been perfected. The reviewing board affirmed that denial, and this court affirmed that decision. Giraldo's Case , 85 Mass. App. Ct. 1109 (2014).
In February, 2015, the employee filed another claim for disfigurement benefits and a penalty against the insurer arising from the same 2003 injury. At conciliation, the department's conciliator administratively withdrew the claim because the employee failed to furnish any information establishing that this claim differed in any material respect from that of the prior claims. That decision was affirmed by the senior administrative judge and the employee sought review in the Superior Court pursuant to G. L. c. 30A. On a motion for judgment on the pleadings, the Superior Court judge affirmed the department's decision to administratively withdraw the claim. The judge ruled that the plaintiff made no effort to distinguish his present claim from the claims he previously made and lost.
The employee claims that the appeal concerning his initial, 2009, claim for disfigurement benefits should not have been dismissed because there was no medical issue in dispute and he should not have been required to pay the fee, in that claim, for the impartial medical examiner. He asserts that the insurer should have known that no medical issue was in dispute and, accordingly, its continuing resistance to pay the disfigurement benefits sought is not based on any reasonable ground, in violation of G. L. c. 152, § 14(1).
The employee's argument ignores the fact that the original dismissal of his appeal for failure to pay the fee was not appealed from and stands as final. His argument also ignores that this same claim, including the claim for a penalty against the insurer, was resolved on res judicata grounds, see Longerato's Case , 352 Mass. 284, 287 (1967), and that decision was affirmed on appeal by this court. Giraldo's Case , supra .
To the extent the employee claims that the procedure of "administrative withdrawal" by a conciliator deprived him of administrative due process because there was no avenue of appeal, his argument is belied by the fact that G. L. c. 30A provides such an avenue, a procedure used by him in this appeal.
Judgment affirmed .