Opinion
No. 15–P–1260.
07-01-2016
Victor SPERANZA v. DEPARTMENT OF INDUSTRIAL ACCIDENTS & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff suffered a work-related injury in 2005. His employer's insurer, defendant American Home Assurance Company. (American), accepted liability, but a dispute remained about damages. One such dispute involved the rate of reimbursement the plaintiff was due for travel to his medical appointments. A Department of Industrial Accidents (DIA) administrative judge issued a conference order requiring American to reimburse the plaintiff's travel expenses at the rate of thirty cents per mile, which was less than the rate the plaintiff had sought (seventy-two cents per mile). The plaintiff filed an administrative appeal of the conference order. After the administrative judge denied his claim for the higher rate of reimbursement, the plaintiff appealed that ruling to the DIA reviewing board.
While the plaintiff's appeal was pending, he and American reached a lump-sum settlement. That settlement included no language expressly reserving the particular claim that was the subject of the pending appeal (the rate of reimbursement for travel expenses). When the reviewing board became aware of the settlement, it notified the plaintiff that his appeal would be withdrawn as moot. See Teehan's Case, 7 Mass.App.Ct. 846, 846 (1979). The plaintiff responded by requesting that his appeal be reinstated, a request on which the reviewing board took no action. More than four years later, the plaintiff again wrote to the reviewing board requesting reinstatement of his appeal and stating that if the reviewing board did not respond within thirty additional days, he would consider that nonresponse to constitute “final agency action” denying the appeal. When the reviewing board took no action, the plaintiff purported to appeal to the Superior Court pursuant to G.L. c. 30A, § 14. A Superior Court judge dismissed that appeal for want of jurisdiction. We affirm.
As the Superior Court judge correctly ruled, the plaintiff's appeal fails for two independent jurisdictional reasons. First, the plaintiff did not file a timely appeal of the reviewing board's determination that his appeal of the travel reimbursement issue was moot. See Friedman v. Board of Registration in Med., 414 Mass. 663, 665–666 (1993). Second, jurisdiction for any such appeal would not lie in the Superior Court. See G.L. c. 152, § 12(2) (Appeals Court has exclusive jurisdiction over appeals of reviewing board decisions).
We deny the plaintiff's request for appellate attorney's fees.
Judgment affirmed.