Opinion
BOARD No. 043235-92
Filed: February 11, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Andrew R. Puglia, Esq., for the employee.
Brian T. Mulcahy, Esq., for the self-insurer.
The self-insurer appeals from a decision in which an administrative judge awarded the employee a closed period of § 34 weekly incapacity benefits, § 50 interest on the unpaid amount of that award, and an attorney's fee under § 13A. The self-insurer argues that the judge erred 1) by failing to accord res judicata effect to a prior unappealed conference order, 2) by failing to assess whether the employee's medical status had changed from the time of that unappealed conference order, 3) by awarding an attorney's fee where the employee did not prove compliance with the procedure laid out in § 10 and 4) by awarding interest against the Commonwealth without express statutory provision therefor. With the exception of the attorney's fee award, which we reverse, we affirm the decision.
The employee suffered an industrial injury on September 9, 1992, for which the self-insurer, Commonwealth of Massachusetts, accepted liability, paying § 34 weekly incapacity benefits until March 4, 1993. Later, the employee made a claim for further incapacity benefits, which resulted in a conference order awarding § 34 benefits from the date of injury to May 27, 1993. Mr. Russo appealed, but did pay the § 11A(2) impartial medical examination fee "because the self-insurer led him to believe that the case would be settled based upon waiver of his appeal." (Dec. 4-5.) When the self-insurer withdrew its offer to settle, Mr. Russo petitioned the Commissioner to allow late payment of the fee. The Commissioner denied the employee's petition, prompting the employee to file another claim for weekly compensation benefits for the period, May 27, 1993 until September 13, 1993. The judge denied the claim at conference, and the employee sought a hearing de novo. (Dec. 2.)
At hearing the self-insurer defended on the basis of res judicata — that the employee, by failing to perfect his appeal from the prior conference order, was foreclosed from bringing another claim for the same period of incapacity in dispute at the prior § 10A conference. The judge rejected the self-insurer's argument, noting that the self-insurer's conduct in inducing the employee to give up his appeal provided equitable reasons for permitting the new claim. (Dec. 4-5.) The report of the impartial medical examiner, accepted by the parties as the exclusive medical evidence in the case, established the employee's total medical disability until September 1993 as prima facie evidence. (Dec. 5.) The judge awarded § 34 temporary total incapacity benefits from May 27, 1993 until September 13, 1993, a § 13A attorney's fee, and § 50 interest on unpaid benefits. (Dec. 7.) The self-insurer appeals to the reviewing board.
With res judicata as the basis, the self-insurer argues that the employee accepted the judge's closed conference order awarding § 34 benefits only until May 27, 1993 when he failed to perfect his appeal thereof by payment of the impartial examination fee. See G.L.c. 152, § 11A(2). The self-insurer claims that the employee is prohibited from maintaining the present action, as it is "based on the same claim that was the subject of [the] earlier action between the same parties." Heacock v. Heacock, 402 Mass. 21, 23 n. 2 (1988). We disagree.
Putting the equitable consideration aside, even if the employee failed to perfect his appeal, the only thing "adjudicated" by the earlier conference order was entitlement to § 34 benefits until May 27, 1993. A conference order from which no appeal is taken only binds the parties for the period covered by the terms of the order. The employee is free to claim additional benefits outside that period. Hendricks v. Federal Express, § 10 Mass. Workers' Comp. Rep. ___ (September 13, 1996).Aguiar v. Gordon Aluminum Vinyl, 9 Mass. Workers' Comp. Rep. 103, 110 (1995). The doctrine of res judicata does not apply under the circumstances of this case.
Similarly the self-insurer's argument that the judge erred by viewing the medical condition of the employee during the disputed post-conference period without regard to a change in that medical status also misses the mark. The proposition of law, that "the employee must prove that his medical condition has changed from that foreseen by the administrative judge when he awarded benefits for a closed period of time[,]" Gaetani v. Fluors Construction, Inc., 7 Mass. Worker's Comp. Rep. 384, 386 n. 1 (1994), is inapplicable to this case. Gaetani and the case which it cites for the proposition, Foley's Case, 358 Mass. 230 (1970), are cases in which there was a prior hearing decision awarding closed periods of benefits. In the present case, there was only a conference order establishing the rights between the parties for the period addressed in that order. We do not apply the same standard in such a case. See Hendricks, supra (distinguishing between the preclusive effect of conference orders and hearing decisions).
The self-insurer also argues that no 13A attorney's fee was due in this case, because the employee failed to prove compliance with the relevant provisions of G.L.c. 152, § 10. The self-insurer raised this issue in its Issues/Defenses Form. (Self-Insurer's Ex. 1). The judge awarded a fee because the self-insurer offered no proof of non-compliance. (Dec. 5-6.) Whatever the purpose served by tying the entitlement to a fee to the employee's proof that 1) his claim was sent to the insurer via certified mail, and that 2) with the claim he sent a copy of a relevant medical report, if such report was in his or his attorney's possession, the language of the statute is clear. If the insurer raises the issue, the employee has to make a showing of compliance, or no fee is due. Since it is undisputed that the employee submitted no such proof, we reverse the judge's award of an attorney's fee under § 13A.
G.L.c. 152, § 10 provides, in pertinent part:
In order for an attorney's fee to be required under section thirteen A, pursuant to a dispute over a claim for benefits under this chapter, such claim shall have been sent to the insurer by certified mail. No attorney' s fee shall be due for services involving a claim sent to the insurer which does not include a copy of a medical report relevant to the alleged claim in the possession of the employee or his attorney.
Finally, there is no merit to the self-insurer's argument that the judge erred in awarding § 50 interest against it, the Commonwealth of Massachusetts, "the sovereign." In order for the Commonwealth to be liable for § 50 interest, it must waive its sovereign immunity. "[W]aivers of sovereign immunity must be expressed by the terms of the statute or appear by necessary implication from them." Onofrio v. Department of Mental Health, 411 Mass. 657, 659 (1992) (emphasis added). See Gurley v. Commonwealth, 363 Mass. 595, 600 (1973) (statute's silence on the question of interest payments indicates legislative intent not to grant them).
G.L.c. 152, § 50, as amended by St. 1991, c. 398, 77 states:
Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums due from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision. Whenever such sums include weekly payments, interest shall be computed on each unpaid weekly payment.
We acknowledge at the outset that § 50 does not, itself, contain any reference to the Commonwealth's obligation to pay interest on awards. However, our reading of various other sections of the Act leads us to conclude that the Commonwealth is liable for § 50 interest on awards, "by necessary implication." The definition of "insurer" includes "the commonwealth and any county, city, town, or district which has accepted the provisions of section sixty-nine of this chapter . . . ." G.L.c. 152, § 1 (7). General Laws c. 152, § 69 sets out various provisions regarding the Commonwealth's status as an employer within the Act. Section 69 specifically provides that "[s]ections seventy to seventy-five, inclusive, shall apply to the commonwealth and to any county, city, town or district having the power of taxation which accepts the provisions of this section as hereinbefore provided . . . ." General Laws c. 152, § 70 then states that,
Procedure under sections sixty-nine to seventy-five, inclusive, and the jurisdiction of the department shall be the same as under sections one to sixty-eight, inclusive, and the commonwealth or such county city, town or district shall have the same rights in proceedings under said sections [one to sixty-eight as the insurer.
(Emphasis added).
One of the "rights in proceedings" included in §§ 1 to 68 is the payment of interest under § 50, along with the "right" to pay benefits under all sections providing for payments to the employee, e.g. §§ 34 and 35. We consider this direct equation between the Commonwealth and private insurers as to all matters contemplated in §§ 1 to 68 to constitute the "necessary implication" within the language of the Act, that the Commonwealth is liable for § 50 interest on awards.
We also note that the Appeals Court has not been troubled by the award of § 50 interest against the Commonwealth in the form of the M.B.T.A., and the City of Boston, a municipal subdivision of "the sovereign." See Dunne v. City of Boston, 41 Mass. App. Ct. 922, 923 (1996) (rescript) (employee entitled to § 50 interest against the city); Thomas's Case, 25 Mass. App. Ct. 964, 965 (1988) (rescript) (employee entitled to § 50 interest against the M.B.T.A.).
The decision is affirmed, with the exception of the attorney's fee award, which is reversed.
So ordered.
_________________________ William A. McCarthy Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
February 11, 1997
This case presents an issue of first impression: Does the workers' compensation act, G.L.c. 152, provide for an award of interest against the Commonwealth when it is the employer? The self-insurer maintains that the Commonwealth, as sovereign, is immune from an interest award. Under ordinary rules of statutory construction, I would have no difficulty invoking the beneficent purpose of the act to imply that the Commonwealth is liable for interest. However, different and more stringent rules of statutory construction govern the waiver of sovereign immunity. Because G.L.c. 152, in toto, and 50 in particular, does not expressly or necessarily imply sovereign liability for interest, I am reluctantly compelled to agree with the insurer that the order of interest was contrary to law. I therefore dissent from the majority affirmation of the interest award.
The cases cited by the majority in note 4, supra, do not address the issue of whether sovereign immunity bars an award of interest against the Commonwealth and therefore provide no support for the majority position. In Dunne, supra, the City conceded that it was obligated to pay interest; the issue was merely which statutes applied: G.L.c. 152, § 50, or G.L.c. 231, § 6H and G.L.c. 235, § 38.
SPECIAL RULES OF STATUTORY CONSTRUCTION GOVERN CASES OF SOVEREIGN IMMUNITY AND INTEREST
The Legislature expressly authorizes interest payments by the Commonwealth when they are intended. Therefore, c. 152's silence on the question of interest payments indicates a legislative intent not to grant them. See Gurley v. Commonwealth, 363 Mass. 595, 600, 296 N.E.2d 477, 481 (1973) (no interest on awards to victims of violent crimes). Interest does not lie against the Commonwealth or its instrumentalities in the absence of express statutory authorization. City of Boston v. Massachusetts Comm'n Against Discrim., 39 Mass. App. Ct. 234, 245, 654 N.E.2d 944, 951 (1995). I see none here. The Language of the Act Does Not Authorize Interest
The rule of "expressio unius est exclusio alterius" is inapplicable in construing a statutory waiver of sovereign immunity. Therefore, the fact that G.L.c. 152, § 65 (2)(e) expressly prohibits interest payments by the trust fund does not mean that § 50 necessarily provides for the Commonwealth to pay interest.
The act does necessarily imply a waiver of sovereign immunity from money payments to compensate an employee for some delayed claims handling by the Commonwealth. See G.L.c. 152, § 8 (1) (no penalty is due where an appropriate voucher for payment was timely submitted).
The Department of Industrial Accidents, Division of Dispute Resolution is not a court of general or limited common law jurisdiction. As an administrative tribunal specifically created to administer the workmen's compensation act, it possesses only such authority and powers as have been conferred upon it by express grant or arise therefrom by implication as necessary and incidental to the full exercise of the granted powers. Hansen's Case, 350 Mass. 178, 180, 213 N.E.2d 869, 870 (1966). Unlike the Labor Relations Commission, the Division of Dispute Resolution does not have broad discretion to fashion an appropriate remedy for a work injury. As does the unemployment security law, the workers' compensation act contains detailed procedural rules and remedies which govern the action of DIA judges. Those detailed provisions do not provide for the Commonwealth to pay interest.
See School Comm. of Newton v. Labor Relations Comm'n, 388 Mass. 557, 579-580, 447 N.E.2d 1201, 1215 (1983) (G.L.c. 150E, § 11 provides authority for an order, against the sovereign, of interest on an award of back pay).
See Broadhurst v. Director of the Div. of Employment Sec., 373 Mass. 720, 727, 369 N.E.2d 1018, 1022-1023 (1977) (interest cannot be awarded on improperly denied unemployment benefits).
The Commonwealth has voluntarily waived its sovereign immunity to a limited extent in order to compensate public employees for injuries arising out of and in the course of their employment, rights which did not exist at common law. The rights of public employees to workers' compensation are governed by G.L.c. 152, §§ 69 through 75, inclusive. St. 1913, c. 807; Locke, Workmen's Compensation, § 104 (2d ed., 1981). There is no mention of "interest" in these sections.
Where the Legislature has acted and partially abrogated the doctrine of sovereign immunity, the reviewing board is unable to override the Legislature's judgement and provide greater benefits. See Broadhurst v. Director of the Division of Employment Sec., 373 Mass. at 727, 369 N.E.2d at 1023. The board must accept what is in effect a statutory limitation of liability because the Legislature has adverted to the subject and has expressed its intent concerning the existence and maximum extent of the Commonwealth's liability. See Piotti v. Commonwealth, 370 Mass. 386, 387, 348 N.E.2d 425, 426 (1976) (crime victim's compensation).
Section 69 provides that the Commonwealth "shall pay to laborers, workmen, mechanics, and nurses, employed by it who receive injuries arising out of and in the course of their employment, or, in case of death resulting from such injury, to the persons entitled thereto, the compensation provided by this chapter." G.L.c. 152, § 69, as amended by St. 1991, c. 552, § 99 (emphasis supplied). The term "compensation" in the workers' compensation act does not include "interest." Murphy's Case, 352 Mass. 233, 235, 224 N.E.2d 462, 464 (1967); seeThomas's Case, supra, 25 Mass. App. Ct. at 965, 519 N.E.2d at 788 ("compensation" as used in § 51 is an amount due the employee separate and distinct from § 50 interest). Thus § 69 does not require the Commonwealth to pay interest.
See note 5, supra.
The language of G.L.c. 152, § 69 is similar to that employed by the legislature to establish the extent of liability by public employers for tort actions. Yet the court, inOnofrio v. Department of Mental Health, 411 Mass. 657, 584 N.E.2d 619 (1992) held that such language did not permit the sought interest award either expressly or by necessary implication. Id., 411 Mass. at 659, 584 N.E.2d at 620. The Onofrio court's analysis produces the same result here.
General Laws, c. 258, 2 states in pertinent part: "Public employers shall be liable for injury . . . caused by the negligent . . . act . . . of any public employee while acting within the scope of his office or employment, in the same manner and to the same extent as a private individual under like circumstances, except that public employers shall not be liable . . . for interest prior to judgment. . ." (emphasis supplied).
Nor does § 70 provide authority for an award of interest against the Commonwealth. Section 70 provides:
Procedure under sections sixty-nine to seventy-five, inclusive, and the jurisdiction of the department shall be the same as under sections one to sixty-eight, inclusive, and the commonwealth or such county, city, town or district shall have the same rights in proceedings under said sections as the insurer. The state treasurer or the treasurer or officer having similar duties of such county, city, town or district shall pay compensation awarded for injury to persons in its employment upon proper vouchers without further authority. G.L.c. 152, § 70, as amended by St. 1986, c. 662, § 47 (emphasis supplied).
"Procedure" is "the established manner of conducting judicial business and litigation including pleading, evidence, and practice." 2 Webster's Third International Dictionary 1807 (1981). "Jurisdiction" in its general sense, is "the legal power, right, or authority to hear and determine a cause considered either in general or with reference to a particular matter." Id. at 1227.
Interest is neither "procedure" nor "jurisdiction," which are the "rights in proceedings" to which § 70 refers. Interest under the workers' compensation act is a "matter touching the remedy." See Murphy's Case, supra, 352 Mass. at 235, 224 N.E.2d at 464. Interest serves to compensate an injured worker for the loss of use of money when compensation to which he is entitled is not voluntarily paid. See City of Boston v. Massachusetts Comm'n Against Discrim., 39 Mass. App. Ct. at 245, 654 N.E.2d at 951. Interest may accrue for reasons completely unrelated to actions of the employer, such as administrative delay within the Division of Dispute Resolution, a condition which prior to the 1991 reforms was altogether too common. Interest is the relief provided, rather than the procedure or jurisdiction used to obtain that relief.
The last sentence of § 70 provides the procedure for payment by the Commonwealth. Significantly, it speaks of "compensation" and requires payment of compensation orders upon submission of "proper vouchers." As previously mentioned, the word "compensation" is a term of art in the workers' compensation system which does not include interest. Murphy's Case, supra.
Nor can one find the authority for ordering the Commonwealth to pay interest in the language of § 50. Section 50 does not mention public employers. Its use of the word "insurer" is controlled by § 1(7). Section 1(7) provides that "insurer" means the Commonwealth "where applicable," which begs the pending question.
Section 50 provides for interest on unpaid compensation as follows:
Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums due from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision. Whenever such sums include weekly payments, interest shall be computed on each unpaid weekly payment.
G.L.c. 152, § 50, as appearing in St. 1991, c. 398, § 77, and by § 105 made applicable to those claims filed on and after the effective date of the Act, December 23, 1991.
See G.L.c. 151B, § 1 (1) (Commonwealth and its instrumentalities included in definition of "person"); City of Boston v. Massachusetts Com'n Against Discrim., 39 Mass. App. Ct. 234, 654 N.E.2d 944 (1995) (sovereign not liable for interest on c. 151B award).
The court has held that a similar statute, which provides that "every judgment shall include postjudgment interest" did not expressly or necessarily imply sovereign liability for interest. G.L.c. 235, § 8, governing the Massachusetts Tort Claims Act interest awards; Onofrio, fn. 5, 411 Mass. at 660, 584 N.E.2d at 620. Using the Onofrio court's analysis, the same ruling results: the Commonwealth is not liable for interest under the workers' compensation act.
Compare the much broader language of G.L.c. 150E, the public employees labor relations act, § 11, interpreted by the court as permitting interest against the Commonwealth inSchool Comm. of Newton v. Labor Relations Comm'n., 388 Mass. 557, 579, 447 N.E.2d 1201, 1215 (1983).
I acknowledge the ingenuity of the employee's argument that a workers' compensation award is in the context of the employment contract between the Commonwealth and the employee, thereby exposing the Commonwealth to liability for interest. He cites Falmouth Hospital v. Commissioner of Public Welfare, 23 Mass. App. Ct. 545, 547-548, 503 N.E.2d 1322, 1323-1324 (1987) (Commonwealth liable for interest on awards that stem from commitments of a contractual nature) and Codman Shurtleff, Inc. v. Commissioner of the Dept. of Employment Training, 36 Mass. App. Ct. 330, 332 (1994), 630 N.E.2d 622, 623. However, these cases are based on contract law and are not controlling in a noncontractual context. Gurley, supra, 363 Mass. at 600, 296 N.E.2d at 481; see Broadhurst, supra, 373 Mass. at 727, 369 N.E.2d at 1022; Chapman v. University of Massachusetts Medical Center, 423 Mass. 584, 586 (1996) (post-judgment interest is based on a statutory right; Commonwealth is not liable for post-judgement interest on awards against it for breach of contract).
Under G.L.c. 231, § 6C "in all actions based on contractual obligations, upon a verdict . . . against the commonwealth for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages. . . ."
If the interest provision is to be extended to public workers putting them on a parity with employees of private employers, the change must be made by the Legislature. It cannot be supplied by the reviewing board under the guise of implied construction to further the beneficent purposes of the workers' compensation act. See Onofrio, supra; see also Saxe's Case, 242 Mass. 290, 291, 136 N.E. 104, 105 (1922) (G.L.c. 152, § 18 does not apply to employee of uninsured subcontractor of a city).
Because the award of interest against the Commonwealth violated the sovereign's immunity and therefore was contrary to law, I would reverse it. G.L.c. 152, 11C.
RES JUDICATA DOES NOT BAR THE CLAIM FOR FURTHER COMPENSATION
I agree that the judge's decision on this issue is not "arbitrary or capricious," in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the workers' compensation requirements, and should therefore be affirmed. See Scheffler's Case, 419 Mass. 251, 258, 643 N.E.2d 1023, 1027 (1994); G.L.c. 152, § 11C.
ATTORNEY'S FEES
The transmittal of medical information supporting a claim expedites claims processing. Therefore, the requirement that a medical report be attached to the claim is a significant provision which should not be slighted. Once the issue was raised, the employee had the burden of proving compliance with the procedural requirement. Because the employee failed to produce any evidence of compliance, I concur in the majority's reversal.
CONCLUSION
Because the award of interest against the Commonwealth was contrary to law, and the award of counsel fees is unsupported by the record, I would reverse them. The remainder of the decision was based on facts which could properly be found and evidenced a correct application of the workers' compensation law; therefore I would affirm it. See G.L.c. 152, § 11C.
_________________________ Suzanne E.K. Smith Administrative Law Judge
February 11, 1997