Opinion
No. 11–P–2020.
2012-11-21
Elizabeth WONG'S CASE (No. 2).
By the Court (CYPHER, GREEN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The employee appeals from a decision of the reviewing board of the Department of Industrial Accidents (reviewing board) summarily affirming the administrative judge's decision denying the employee's request for reimbursement of some costs associated with an approved claim for benefits for an orthopedic injury that occurred in 2005. Because the reviewing board summarily affirmed the administrative judge's decision, “the reviewing court is examining the findings and reasoning of the administrative judge.” Whitman's Case, 80 Mass.App.Ct. 348, 352 (2011). See Dalbec's Case, 69 Mass.App.Ct. 306, 313 (2007).
In 2007, the self-insurer sought to discontinue the employee's benefits for the 2005 orthopedic injury. At the G.L.c. 152, § 10A, conference held on June 11, 2007, the employee submitted a report from Dr. Robert Pennell, dated May 31, 2007. The administrative judge initially allowed the self-insurer's request to discontinue, resulting in the employee's appeal for a de novo hearing. Prior to the June 11, 2007, conference, the employee had subpoenaed the records of Dr. Jon Warner. Nineteen days prior to the de novo hearing, the self-insurer made an offer that was rejected by the employee. After the hearing, the administrative judge ordered compensation in the exact amount offered by the self-insurer, and consequently refused to order an attorney's fee or reimbursement of costs to the employee's counsel. See 452 Code Mass. Regs. § 1.19(3) (2008). The employee appealed so much of the order as declined to award fees and costs; we affirmed in an unpublished decision pursuant to our rule 1:28. See Wong's Case, 76 Mass.App.Ct. 1126 (2010) ( Wong No. 1 ). In 2008, while the appeal in the earlier matter was pending, the employee filed a new claim for psychiatric injury related to the original orthopedic injury, which was contested by the self-insurer. At the conference on her psychiatric claim, the employee again submitted the 2007 report of Dr. Pennell and the medical records subpoenaed in the earlier proceeding, as well as new reports from Dr. Pennell and other medical records. The claim was denied at conference, the employee appealed, and an impartial medical examiner (IME) was appointed. An additional 2009 report from Dr. Pennell was also submitted to the IME. The same administrative judge found that the employee suffered a psychiatric injury, but that she was capable of earning her preinjury weekly wage. Accordingly, he denied weekly compensation, but ordered the self-insurer to pay for the employee's psychiatric treatment. He also ordered the self-insurer to pay the standard fee to the employee's attorney and to reimburse reasonable costs of prosecuting the claim. The self-insurer paid the fee and most costs, but refused to pay for certain costs associated with reports and records submitted during the proceedings in Wong No. 1.
“When an insurer ... at least five days before a hearing, serves on a claimant ... a written offer to pay weekly compensation ... and such offer is not accepted, the insurer shall not be required to pay any fee under G.L.c. 152, § 13A, for such ... hearing, unless the order or decision rendered directs a payment of said weekly or other compensation in excess of that offered.”
The employee then filed the claim at issue here, seeking reimbursement of the costs denied by the self-insurer. The claim was denied at conference and the employee appealed. At the time of the de novo hearing on this claim, the only expenses at issue were the 2007 report of Dr. Pennell ($600) and the subpoena for Dr. Warner's records ($73), reimbursement for which had been denied in Wong No. 1. The same administrative judge determined that the two expenses at issue were not “necessary expenses” as provided in G.L.c. 152, § 13A, and defined in 452 Code Mass. Regs. § 1.02 (2008), as “reasonable out-of-pocket costs, as the Department [of Industrial Accidents] may set, to a claimant's attorney incurred by said attorney in prosecuting a claim for benefits ... including the cost of obtaining relevant medical records, doctor's reports ... [and] constable charges.” He found that the employee failed to meet her burden of establishing the reasonableness and necessity of the expenses as, other than the medical records at issue and some records of the proceedings, all that was submitted was the testimony of a paralegal employed by the employee's attorney that the expenses were incurred. In addition, he determined that because later reports from Dr. Pennell were submitted, the 2007 report was merely cumulative.
The administrative judge also appears to have denied costs for two later (2008) reports of Dr. Pennell at the conference on this claim, but the self-insurer has paid them and they are not at issue in this appeal.
The administrative judge characterized the issue before him as follows: “Can an attorney get all his expenses from the failed first case reimbursed if he submits them in a second case and succeeds in winning the second case?” He concluded the answer was “No.... Winning a later case does not entitle the attorney for the employee to recoup all expenses from all cases previously brought on behalf of the same employee.”
The employee argues that the administrative judge's decision was arbitrary and capricious and based on an error of law. To the contrary, the decision is soundly based on his finding that the records involved in this claim were cumulative of other submissions and thus not necessary, notwithstanding the IME's reliance upon them. The employee also argues that the administrative judge committed an error of law by failing to view the necessity of the expenses from the viewpoint of the employee's attorney, i.e., whether the attorney “had a subjectively or even objectively necessary or reasonable basis for expending a certain amount in prosecuting the client's case.” There is nothing in the statute or regulation to indicate that it is the employee's counsel's viewpoint that should control whether an expense is necessary. See Murphy's Case, 53 Mass.App.Ct. 424, 427 (2001) (we give due weight to the experience, technical competence, and specialized knowledge of the department, as well as to the discretionary authority conferred upon it).
Finally, as noted by the self-insurer, the expenses sought by the employee were not “incurred ... in prosecuting” the claim for benefits for the psychiatric injury, but were incurred in the prior claim for the orthopedic injury, thus placing the expenses outside of those permitted by the statute and regulation.
Decision of reviewing board affirmed.