Opinion
14-P-1452
06-26-2015
RAMONA RICHARDS'S CASE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Ramona Richards (employee) appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), which affirmed an administrative judge's dismissal of the employee's claim and the judge's award of costs, including attorney's fees, against the employee's attorney pursuant to G. L. c. 152, § 14(1). On appeal, the employee argues that (1) res judicata does not bar her claim, and (2) her attorney did not bring her claim "without reasonable grounds" for the purposes of G. L. c. 152, § 14(1). We affirm.
Background. Because the primary issue on appeal is whether the doctrine of res judicata barred the employee's claim, we recite the procedural background in some detail. In May, 2005, the employee filed a workers' compensation claim, which was heard by the administrative judge in July, 2006, and decided in a written decision dated June 13, 2007 (Richards I). The judge concluded:
"The employee has failed to meet her burden of proof that she sustained an injury arising out of and in the course of her employment on December 5, 2003. Although I credit her testimony that she was lifting boxes on that date, and felt a pain in her back and left ribs, I find she was not credible as to the reason for her leaving her employment. The medical evidence of her own treating physicians does not support disability from employment."The board summarily affirmed the decision, and we subsequently affirmed the board in an unpublished memorandum and order pursuant to our rule 1:28. Richards's Case, 74 Mass. App. Ct. 1112 (2009). The employee did not seek further appellate review.
However, the employee, claiming subsequent periods of disability, attempted three times thereafter to pursue again claims stemming from the same workplace event. Each time, a conciliator withdrew the claim as barred by res judicata.
In January, 2012, the employee presented her claim a fourth time based on a different period of disability. A conciliator again withdrew the claim, and the employee appealed to the senior judge. Based on the isolated phrase in Richards I that "I [the administrative judge] credit her testimony that she was lifting boxes on that date [December 5, 2003], and felt a pain in her back and left ribs," the senior judge concluded that "the liability door [had been left] open for the employee to pursue a future claim should she suffer a period of disability that is supported by sufficient medical evidence." The senior judge accordingly allowed the claim to proceed. Nonetheless, the senior judge also stated that, "[i]f the administrative judge determines that counsel has proceeded without reasonable grounds, especially given the extensive appellate history in this matter, § 14 sanctions remain available."
See G. L. c. 152, § 10(2), inserted by St. 1991, c. 398, § 26 ("Any party aggrieved . . . by the conciliator's withdrawal of a claim or complaint may file a written appeal with the senior judge who, if all requested information has been submitted, shall set a date for referral to the industrial accident board").
The same administrative judge who had heard and decided Richards I held a de novo hearing on the new claim. In a decision issued on April 29, 2013, the judge determined that the claim was barred by res judicata. He reasoned that although he had previously credited the employee's testimony about feeling a "pop" in her back, he had found there was "no dispositive medical evidence" that the "pop" was due to a "change or lesion," as required to constitute a compensable workplace injury. The judge found that he had unambiguously determined in Richards I that the employee had not sustained a compensable injury. Concluding that the most recent claim was brought "without reasonable grounds," the judge assessed the costs of the most recent proceeding against the employee's attorney.
The judge concluded the first three claims withdrawn by the conciliator were "separate and distinct proceedings" and subtracted those costs from the insurer's proposed total award.
The board affirmed the judge's decision on a number of different bases. First, the board rejected the employee's argument that res judicata did not apply because the language of Richards I was ambiguous. The board noted that no claim of ambiguity had been made on appeal from Richards I, and no further appellate review had been sought after we affirmed that decision. Second, the board observed that the employee failed to address the rulings of law made in Richards I or her own statements in her appeal from that decision, in which she conceded that the administrative judge Richards I had found no compensable injury. Third, the board further concluded that the senior judge's ruling, without more, could not provide reasonable grounds to pursue the new claim. It therefore affirmed the imposition of costs.
The appellate briefs from Richards I are not included in the record. However, we do not rest our decision on their contents.
Discussion. "The workers' compensation statute directs that review of a decision of the board is to be in accordance with G. L. c. 30A, § 14 (7)(a)-(d), (f), and (g)." DiFronzo's Case, 459 Mass. 338, 341 (2011), citing G. L. c. 152, § 12(2). "We may thus reverse or modify the board's decision when, inter alia, it is 'based upon an error of law' or is '[a]rbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.'" DiFronzo's Case, supra, quoting from G. L. c. 30A, § 14(7)(c), (g).
1. Res judicata. "A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that 'a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . . .'" Corrigan v. General Elec. Co., 406 Mass. 478, 479 (1990), quoting from Fidler v. E.M. Parker Co., 394 Mass. 534, 539 (1985). The doctrine is "particularly apt in the workmen's compensation context." Martin v. Ring, 401 Mass. 59, 61 (1987). Where, as here, one of the key issues during the first round of litigation was the causation of the employee's injury, and "[t]here has been no showing to cast doubt on the quality, extensiveness, or fairness of the prior adjudication," the employee is barred from relitigating the issue. Ibid.
The employee's argument that her 2012 claim is not barred by res judicata rests upon her reading of Richards I. More particularly, the employee contends that, although the judge in Richards I found no disability, he did find initial or original liability. As a consequence, the employee argues, her claim of present incapacity and the issue of its causal relationship to the original injury should not be barred by the doctrine of res judicata. We disagree.
Although it is true that the judge credited the employee's testimony that she felt a pain in her back and left ribs after lifting boxes while at work, that finding cannot be divorced from the remainder of the judge's decision. The judge discredited the remainder of the employee's testimony and found that the medical evidence did not support a finding of disability from her employment. The judge explicitly found that the employee "did not sustain an injury arising out of her employment. Her decision to terminate her employment with the employer was not based upon the injury that she sustained." He further found that "[t]he medical evidence from the employee's treating physician does not support disability and incapacity, nor ongoing complaints of back pain." The judge also concluded that the employee "failed to meet her burden of proof that she sustained an injury arising out of and in the course of her employment on December 5, 2003." Thus, the board did not err when it concluded that the judge in Richards I found there was no original work injury.
This being the case, the employee cannot bring a new claim based on present incapacity or the causal relationship of the present incapacity to the original work injury. See Vetrano v. P.A. Milan Co., 2 Mass. Workers' Comp. Rep. 232, 235 (1988); Russell v. Red Star Express Lines, 8 Mass. Workers' Comp. Rep. 404, 407 (1994).
Nor did the board err by ruling that G. L. c. 152, § 16, is inapplicable to this case. Section 16 applies only when "it appears that compensation has been paid or . . . that the employee is entitled to compensation." G. L. c. 152, § 16, as amended by St. 1985, c. 572, § 31. It is undisputed that the employee never received compensation and, as stated above, the administrative judge specifically found that the employee's injury was not "compensable."
2. Costs. The employee contends the board abused its discretion by concluding that her claim was "without reasonable grounds." See G. L. c. 152, § 14(1). She relies on the senior judge's statement that the administrative judge had "left the liability door open," given his finding in Richards I that the employee had been lifting boxes on the relevant date.
The employee also contends that her claim was not "without reasonable grounds" because it was supported by an additional medical report demonstrating the causal relationship of the present incapacity to the original work injury. Because there was no finding of an original work injury, the board did not abuse its discretion by concluding that the claim was without reasonable grounds notwithstanding the additional medical report.
The board did not abuse its discretion by concluding that the senior judge's ruling, without more, could not provide reasonable grounds to pursue the claim. Whether the employee's counsel brought a proceeding "without reasonable grounds" is an objective inquiry. DiFronzo's Case, 459 Mass. at 342. A claim is not "without reasonable grounds" if it presents "[a] fair question of law" or has "some plausibility[.]" Id. at 343 (citations omitted). Here, the employee's claim rested on an implausible reading of a single sentence taken out of context from the rest of the administrative judge's decision. Although the senior judge permitted the employee's claim to proceed, plaintiff's counsel was expressly warned of the possibility of § 14 costs.
As the board noted, to the extent there was any ambiguity in the holding of Richards I, that claim should have been raised on direct appeal.
3. Insurer's motion for double costs. The insurer requests that this court assess sanctions against the employee's counsel for filing a frivolous appeal. See Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979). Although we have determined that costs were appropriately assessed by the administrative judge and the board, that determination does not require us to award fees and costs for this appeal. Given that the senior judge allowed the claim to proceed, combined with the size of the award, we do not view the appeal, though unsuccessful, as frivolous. See Avery v. Steele, 414 Mass. 450, 455 (1993).
Decision of reviewing board affirmed.
By the Court (Vuono, Wolohojian & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: June 26, 2015.