John Demers's Case, 100416 MACA, 15-P-1446

Docket Nº:15-P-1446
Party Name:JOHN DEMERS'S CASE.
Judge Panel:Agnes, Neyman & Henry, JJ.
Case Date:October 04, 2016
Court:Appeals Court of Massachusetts
 
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JOHN DEMERS'S CASE.

No. 15-P-1446

Appeals Court of Massachusetts

October 4, 2016

Unpublished Opinion

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Twenty seven years ago, James N. Ellis, Jr., represented John Demers (employee), in a matter before the Department of Industrial Accidents (department), respecting a compensation claim for injuries allegedly sustained on the job in 1987. The employer, The Weetabix Company, Inc., and its insurer, Ace American Insurance Company, contested the employee's claims for benefits.

After making payments, the insurer filed a request to discontinue benefits, asserting that the employee was not disabled and was in fact healthy and able to return to work. Initially, an administrative judge of the department issued a conference order (dated November 2, 1989), denying the request. The insurer and the employer appealed from the conference order. Subsequently, after a de novo hearing, the same judge found in favor of the insurer, authorizing the discontinuation of temporary total incapacity benefits (July 30, 1991, decision).

In so ruling, the administrative judge did not award attorney's fees or costs. Ellis, on behalf of the employee, appealed to the reviewing board (board) of the department but did not assign as error the failure of the administrative judge to award fees or costs; also, with new counsel, the employee filed a separate appeal with the board. The board affirmed the July 30, 1991, decision.1

In 2008, the Ellis renewed his efforts to obtain fees and costs, under G. L. c. 152, § 13A, 2 in connection with the same workers' compensation case. After a hearing, a different administrative judge ruled that the petitioner's claim was untimely and ill-based. The hearing judge decided that "the only avenue for [an award] of fees associated with the [July 30, 1991] Decision . . . would be a request for an amendment after the decision [had issued] or in the [related] appeal itself." The board summarily affirmed..3 Ellis has appealed to this court, see G. L. c. 152, § 12(2), arguing that the administrative judge abused his discretion and erred as a matter of law in denying an award of costs and fees in a case where...

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