Opinion
10-P-2134
09-30-2011
QUYANA NEAL'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
Quyana Neal appeals under the Workers' Compensation Act from a decision of the reviewing board of the Department of Industrial Accidents (board). G. L. c. 152, § 12(2). The board affirmed the administrative judge's (judge) denial of G. L. c. 152, § 36, permanent loss of function benefits and imposition of G. L. c. 152, § 14(1), costs on Ellis & Associates (Ellis), the law firm that represented Neal in this claim. We affirm.
On March 11, 2006, Neal slipped on a puddle of water and fell at her place of work, Mary Immaculate Nursing Center. Neal's left side and back were injured, and she received G. L. c. 152, § 34, temporary and total incapacity compensation for six months. Neal's Case, 74 Mass. App. Ct. 1113 (2009) (Neal I).
Neal previously appeared before this court in a case arising from the same accident. See Neal I, supra. An administrative judge determined, in agreement with the G. L. c. 152, § 11A, impartial medical examiner, Dr. George Lewinnek, that Neal's injury resolved by September 5, 2006. In Neal I, we affirmed the judge's decision not to strike Lewinnek's opinion as biased. We found that the 'issue of the doctor's impartiality was thoroughly vetted during the hearing.' Ibid.
Discussion. On appeal, Neal argues that her due process rights were violated when the judge refused to assist in subpoenaing a particular witness. Neal also contends that the judge erred as a matter of law when he assessed G. L. c. 152, § 14(1), costs against Ellis for pursuing a frivolous claim.
In accordance with G. L. c. 152, § 12(2), we review the board's decision using the standards set forth in G. L. c. 30A, § 14(7)(a)-(d), (f), and (g). See Scheffler's Case, 419 Mass. 251, 257-258 (1994); Carpenter's Case, 456 Mass. 436, 439 (2010). The board's decision is subject to reversal or modification when it is '[i]n violation of constitutional provisions,' beyond 'statutory authority or jurisdiction,' '[b]ased upon an error of law,' '[m]ade upon unlawful procedure,' '[u]nwarranted by facts found by the court,' or '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.' G. L. c. 30A, § 14(7)(a)-(d), (f), and (g). Carpenter's Case, supra.
A. Subpoena request. Neal complains that the judge denied her due process rights when he refused to sign the subpoena of Sandra Gildea, the manager of the impartial unit at the Department of Industrial Accidents. Gildea, Neal argues, is the only source for evidence of complaints of bias against the impartial medical examiner, Dr. George Lewinnek, and information about whether there is a system at the Department of Industrial Accidents to 'weed out' biased physicians from serving as G. L. c. 152, § 11A, impartial medical examiners. After fully considering the issue, the judge declined to sign the subpoena because he had doubts about Gildea's utility as a witness. He continued the hearing so that Neal could pursue the desired information in other ways.
In fact, a look at the Workers' Compensation Act reveals the answer to this question. The senior administrative judge reviews and updates the roster of impartial medical examiners. G. L. c. 152, § 11A(1) and (3). The health care services board receives and investigates complaints about doctors, and removes them from the roster when appropriate. G. L. c. 152, § 13(3).
Subpoenas must be issued by a member of the industrial accident board of administrative judges, and the Superior Court has jurisdiction over enforcement. G. L. c. 152, § 11B. Therefore, as the reviewing board noted in its decision, '[T]he longstanding practice is to request the administrative judge to sign a subpoena seeking the attendance of a material witness. Should the witness then fail to appear, the party may, in turn, bring that subpoena to the superior court for enforcement.'
At the hearing, the judge explained his understanding of the mechanism for 'weeding out' biased impartial medical examiners. He encouraged Neal to ask the senior administrative judge for an official explanation, and to request any reports on Lewinnek. The judge also suggested that Neal pursue a Freedom of Information Act request to obtain the desired information. Neal did not pursue these options. Furthermore, Neal did not depose Lewinnek or enter any evidence of changed circumstances since Neal I, which concluded that the issue of Lewinnek's impartiality had been 'thoroughly vetted.' Neal I, supra.
The judge's refusal to assist in subpoenaing Gildea contributed to the exclusion of her testimony. Administrative judges have discretion to admit and exclude evidence. See Figueiredo's Case, 49 Mass. App. Ct. 906, 908 (2000). Particularly because the information Neal sought was not new, and was available elsewhere, it was not a violation of Neal's due process rights to decline to subpoena Gildea. We conclude, therefore, that the judge did not abuse his discretion.
B. Imposition of costs. Neal argues that the judge erred as a matter of law by assessing costs against Ellis for advancing a frivolous claim. Administrative judges may assess the whole cost of the proceedings upon either party or counsel if the judge determines that the proceedings have been brought, prosecuted, or defended without reasonable grounds. G. L. c. 152, § 14(1). We review the board's affirmance of the decision to ensure that it is factually warranted and not arbitrary or capricious. See G. L. c. 152, § 12(2); Sikorski's Case, 455 Mass. 477, 484 (2009). Here, the judge made findings of fact that amply justify his decision to impose costs on Ellis. Specifically, the judge found that soon after receiving Neal's claim, the insurance adjuster, Susan Sobolewski, offered full payment. Ellis accepted the offer on the condition that the insurer send the check directly to Ellis. Sobolewski agreed to this contingency provided that Ellis sent a signed authorization from Neal. In response, Ellis declared that 'the deal was off.' It is not reasonable to reject an offer of full payment under these circumstances. In sum, the judge's order requiring Ellis to pay costs was not arbitrary or capricious.
Although Ellis failed to file a separate appeal, the appellee does not challenge Ellis's participation in this appeal and has proceeded to the merits of the costs issue.
We defer to the Department of Industrial Accidents policy that insurers must send compensation checks to employees at their homes. Rivera v. H. B. Smith Co., 27 Mass. App. Ct. 1130 (1989).
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Decision of reviewing board affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),