Opinion
16-P-523
02-21-2017
Roberto FERNANDEZ'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee, Roberto Fernandez, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board), affirming the denial of his claim for G. L. c. 152, §§ 8(1) and 14(1) penalties. We affirm.
Background . On January 10, 2012, a Department of Industrial Accidents conference order entered awarding the employee G. L. c. 152, § 36, benefits, as well as attorney's fees. The order also permitted the insurer, U.S. Fire Insurance Company, to withhold a portion of the employee's specific compensation award to satisfy the fee award pursuant to G. L. c. 152, § 13A(10). The insurer subsequently reduced the employee's award by the applicable amount. The employee took no further action as to the conference order.
In 2013, the Supreme Judicial Court issued Spaniol's Case , 466 Mass. 102 (2013), in which it held that the legislature did not intend in its statutory and regulatory worker's compensation scheme to allow insurers to pay for attorney's fee awards by offsetting an employee's § 36 specific compensation award. Spaniol , supra at 108-109. Relying on Spaniol , on October 4, 2013, the employee filed a claim seeking penalties under G. L. c. 152, §§ 8(1) and 14(1). The administrative judge denied the claim after a hearing. , The board affirmed the decision, on the ground that Spaniol had no effect on the employee's case, as his claim "was resolved long before the court, in Spaniol , changed the law."
A prior 2012 § 8 claim was administratively withdrawn at the conciliation stage.
The employee never filed a claim for payment of the amount that was withheld for attorney's fees. Instead, he sought penalties, arguing that the insurer had an affirmative obligation to promptly compensate the employee after Spaniol issued.
Discussion . On appeal, the employee argues that Spaniol has retroactive effect, and that the board accordingly erred in upholding the administrative judge's denial of his claim for penalties. We review the board's decision pursuant to standards set forth in G. L. c. 30A, § 14(7), which governs appeals from final administrative agency decisions. See also G. L. c. 152, § 12(2). This court may remand the board's decision if it is based upon an error of law, is arbitrary, capricious, or is otherwise not in accordance with the law. Spaniol , supra at 106.
Here, assuming, without deciding, that Spaniol has retroactive application, we nevertheless agree with the board that it does not apply to the employee's claim. The normal retroactivity rule applies a change in the law to all claims in which: (i) a final judgment has not entered; (ii) an appeal is pending or the appeal period has not expired; and (iii) those on which an action is commenced after the release of the opinion in question. Lindor v. McDonald's Restaurants of Mass., Inc ., 80 Mass. App. Ct. 909, 910 (2011). As we have noted, the employee failed to timely appeal the conference order, which expressly permitted the fee shifting. "Failure to file a timely appeal or withdrawal of a timely appeal shall be deemed to be acceptance of the administrative judge's order and findings." G. L. c. 152, § 10A(3). Because the order became final long before Spaniol was decided, none of the circumstances listed above apply here. Nor may the filing of a new claim for penalties reopen the matter, or serve as a substitute for an appeal. Cf. Bromfield v. Commonwealth , 400 Mass. 254, 257 (1987) (a motion for relief from judgment "does not provide an avenue for challenging supposed legal errors" and "is not a substitute for appeal").
Given our disposition we need not address the employee's challenge to the denial of his motion to certify a class action. We also deny his request for an award of his appellate attorney's fees and costs.
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Decision of the reviewing board affirmed .