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Ellis v. Commissioner of the Department of Industrial Accidents6/11/2004
Workers' Compensation Act, Exhaustion of administrative remedies, Attorney's fees. Administrative Law, Exhaustion of remedies.
The plaintiff, seeking to collect attorney's fees and other legal expenses on three workers' compensation cases, requested hearings before administrative judges of the Department of Industrial Accidents (DIA). The DIA, by form notice in each case, informed the plaintiff that "the appeal . . . on the . . . case filed on the referenced date will not be processed to schedule an impartial medical examiner due to failure to submit . . . the fee required to defray the cost of the medical examination." The DIA notice further stated: "You may petition the Commissioner [of the DIA] to enlarge the time to submit the fee, if the failure to make a timely submission of the fee is due to mistake, accident, or other reasonable cause."
In fact, the plaintiff's action in not submitting the three fees was not due to mistake or accident; rather, the plaintiff submitted no fees because the issues involved in each of the appeals were non-medical issues, not requiring a medical examination. The appeals were effectively dismissed, in that they were not processed or scheduled.
After correspondence between the plaintiff and the DIA, the plaintiff filed his complaint for declaratory relief, mandamus, and an injunction directing the commissioner to schedule three separate hearings on the third-party claims for attorney's fees and other legal expenses. The Superior Court judge granted the DIA's motion to dismiss for failure to exhaust administrative remedies available within the DIA. For this argument, the defendant relied in the trial court, as he does in this court, upon § 10A of the Workers' Compensation Act (the Act), G. L. c. 152, § 10A, and 452 Code Mass. Regs. § 1.11 (1997) and 452 Code Mass. Regs. § 1.15 (1993) as providing an adequate and available administrative remedy.
The Superior Court judgment dismissing the plaintiff's complaint must be reversed. Under the circumstances presented here, the DIA points to no statutory or regulatory provision providing an avenue for relief from an "administrative withdrawal" that is the functional equivalent of a claim's involuntary dismissal. The DIA's reliance on the last paragraph of § 10A(3) of the Act and on 452 Code Mass. Regs. §§ 1.11 and 1.15(7) as providing such avenues of relief is misplaced.
Section 10A(3) of the Act speaks directly to action or inaction by the parties to the dispute, not actions taken by the DIA. We observe that to whatever extent § 10A(3) allows a party to petition the commissioner for relief from that party's failure to pursue a timely appeal, such opportunity is not afforded to parties who have withdrawn their claims after a conference. The provision has no application where, as here, it is undisputed that the party's appeal was pursued and timely filed. See G. L. c. 152, § 10A(3); 452 Code Mass. Regs. § 1.11(1).
Although a party seeking waiver of the requisite appeal fee based on indigency may petition the commissioner for a waiver of the appeal fee, 452 Code Mass. Regs. § 1.11(1)(a), that situation is not presented by these cases, where the sole issue is that no fee was due because the cases involved non-medical issues. 452 Code Mass. Regs. § 1.10(8) (1997). Lastly, 452 Code Mass. Regs. § 1.15(7) merely provides that the parties must notify the reviewing board when they have withdrawn an appeal in a case that is pending before that tribunal; it provides no relief for a party whose claim is dismissed by the DIA while the parties are awaiting assignment to an administrative judge for a hearing after a timely appeal of the conference order has been filed.
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