Opinion
11-P-538
09-26-2011
MASSACHUSETTS HEALTHCARE SIG v. JAMES ELLIS.
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
We affirm the order of the Superior Court judge enforcing the order of the administrative judge of the Department of Industrial Accidents imposing a monetary sanction against the defendant. General Laws c. 152, § 12(1), as amended by St. 1985, c. 572, § 26, provides that '[w]henever any party in interest presents a certified copy of an order or decision . . . to the superior court . . . the court shall enforce the order or decision, notwithstanding whether the matters at issue have been appealed and a decision on the merits of the appeal is pending.' Here, Massachusetts Healthcare SIG (MassHealth) presented the Superior Court judge with a certified copy of the administrative judge's order assessing a monetary sanction of $4,112.50 against the defendant under G. L. c. 152, § 14(1), for initiating a proceeding without reasonable grounds. As required by the plain language of the statute, the judge enforced the order regardless of the pendency of an appeal. See Arbogast v. Employers Ins. of Wausau, 26 Mass. App. Ct. 719, 720-721 (1988).
In a separate 'judgment and order,' the judge awarded attorney's fees and costs to Massachusetts Healthcare SIG under G. L. c. 152, § 12A. Section 12A provides that the court shall allow fees and costs to any party in interest who receives an enforcement order from the Superior Court.
The defendant fails to establish why the award of fees and costs under § 12A is not warranted. We affirm that award.
Contrary to the defendant's contention, the final sentence of G. L. c. 152, § 17, which instructs that no penalty shall be assessed during the pendency of an appeal, does not alter the result dictated by § 12. On its face, § 17 simply requires compliance with § 12 until the order has been reversed and prohibits assessment of additional penalties while an appeal is pending. The order of the administrative judge for which enforcement was sought predates the defendant's appeal in the underlying action and is not a 'penalt[y] . . . assessed during the pendency of an[] appeal.' G. L. c. 152, § 17. Likewise, the enforcement order entered in the trial court pursuant to § 12 is not a 'penalt[y] . . . assessed during the pendency of an[] appeal.' Ibid.
Section 17 commands that '[a]ll orders or decisions issued in accordance with this chapter shall be enforceable under section twelve unless and until reversed by a decision of a member of the board or a reviewing board, or a judgement or decision of a court of the commonwealth . . . . No penalties shall be assessed during the pendency of any appeal.' G. L. c. 152, § 17, as amended by St. 1985, c. 572, § 32.
In its brief, MassHealth requests appellate attorney's fees and costs pursuant to G. L. c. 152, § 12A. In accordance with the procedure described in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), within fourteen days of the date of the rescript of this decision, MassHealth shall file with this court and serve on the defendant a motion for determination of the amount of its appellate attorney's fees and costs, supported by an affidavit detailing such fees and costs. The defendant may, within fourteen days thereafter, file with this court and serve on MassHealth any opposition.
Order dated January 29, 2010, enforcing penalties affirmed.
Judgment and order awarding fees and costs affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),