No. 026203-04.Commonwealth of Massachusetts Department of Industrial Accidents
April 8, 2010.
INQUIRY UNDER G.L. c. 152, § 7C
(Judge McCarthy, Senior Judge)
APPEARANCES
Charles E. Berg, Esq., pro se
Max D. Stern, Esq., for James N. Ellis, Esq.
Diane Cole Laine, Esq., for the insurer
On August 3, 2004, the employee suffered a back injury at work. The insurer accepted the case and began payment of temporary total incapacity benefits under § 34 of the Act.
Sometime thereafter, the employee claimed a psychiatric injury as a sequela to the back injury. The insurer was prepared to accept the psychiatric injury until a dispute arose regarding the amount of any attorney’s fee which might be due. With the fee issue unresolved, a hearing on the psychiatric claim was rescheduled by the administrative judge, with the agreement of the parties, to September 20, 2006 at Lawrence. At about 3:30 P.M. on the day before the rescheduled hearing, Attorney Berg faxed a letter to the judge at the Lawrence office requesting a continuance of the case. The judge did not see the faxed letter until the following morning. Insurer counsel was present in court on the morning in question but neither the employee nor his attorneys appeared. Early that afternoon, a letter signed by Attorney Berg was faxed to the judge. The letter stated in pertinent part:
At noon today a call was relayed to me en route to Boston where I have four conferences. . . . When you finally deigned to respond to our attempts at contacting your office to reschedule, I was not in a position to be in two places simultaneously.
When the day passed without the employee or his counsel appearing, the judge denied and dismissed the claim with prejudice. The employee appealed to a reviewing board panel which, in a decision filed June 18, 2008, held that the hearing judge did not abuse his discretion when he denied and dismissed the psychiatric claim.[1]
The reviewing board concluded that employee’s counsel had violated c. 152 § 14(1) by filing and pursuing an appeal without reasonable grounds and ordered the whole cost of the proceedings be assessed upon attorneys Berg and Ellis. Ferreira v.Forrest Homes of Massachusetts, 22 Mass. Workers’ Comp. Rep. 125, 129 (2008). The reviewing board retained jurisdiction of the case for the sole purpose of fixing the amount due under § 14(1). Id.
The reviewing board’s displeasure with the actions of employee’s attorneys is evident in the final paragraph of its decision which reads as follows:
The conduct of the employee’s attorneys in this case demonstrates a profound misunderstanding of the law and our dispute resolution process. Moreover, the judge realized, as do we, that counsel placed their own financial interest ahead of their client’s. Rather than accept the insurer’s offer to voluntarily accept the employee’s claim for psychiatric benefits, they chose to continue the matter and to insist on the payment of fees and costs that were not due. On the day of the continued hearing, without any justification, they failed to appear. In effect, the employee’s attorneys converted an offer to accept their client’s claim for benefits into denial and dismissal of his claim with prejudice. Accordingly, we are compelled to refer this entire matter to the Senior Judge to take whatever action, pursuant to G.L. c. 152, § 7C, she deems appropriate.
Ferreira at 129 (Citations and footnote omitted). Ultimately, the reviewing board determined the costs of the proceedings, and hence the § 14(1) penalty, to be $2,420.10. Ferreira v.Forrest Homes of Massachusetts, 22 Mass. Workers’ Comp. Rep. 203 (2008). The reviewing board ordered the employee’s attorneys to pay the $2,420.10 penalty. Id.
Employee counsel appealed the decision of the reviewing board, and the Massachusetts Appeals Court upheld the dismissal of the case by the hearing judge, pointing out that an adjudicatory body possesses inherent authority to dismiss a case for lack of prosecution.Ferreira’s Case, 75 Mass. App.Ct. 1101, Memorandum and Order Pursuant to Rule 1:28 (8/20/09) The court also affirmed the board on the second issue raised on appeal, namely the sufficiency of the evidence of the claim. The court stated, “Because the plaintiff’s representations to the impartial examiner’s interview questions never came into evidence as testimony before the administrative judge, their absence left the report without a foundation and inadmissible.” Id.
I now turn to § 7C which provides that, “[t]he senior judge may, for cause, deny or suspend the right of any person to practice or appear before the department.” Attorney Berg asserts that after his appearance on behalf of the employee at the Lawrence Department of Industrial Accidents on September 8, 2006, he dictated a lengthy report with recommendations and instructions and returned the Ferreira file to the office of James Ellis, Esq., fully expecting that his involvement with this file was concluded.
My review of the entire record in this case leads me to conclude that Attorney Ellis was the tactician behind strategic decisions regarding the course of the claim. Notwithstanding Attorney Berg’s claim, he continued to be involved in this case, following and implementing Attorney Ellis’s strategy. As the reviewing board pointed out in its decision, the employee’s attorneys rejected the insurer’s offer to voluntarily accept the claim for psychiatric benefits. Instead, they chose to insist on the payment of fees and costs contemporaneous with the acceptance of the psychiatric claim. Attorneys Berg and Ellis thereby put their self interest ahead of that of the client. Their actions call for the application of § 7C.
Accordingly, I suspend Attorney Charles E. Berg from practicing or appearing before the department for a minimum period of twenty-five (25) days, beginning on April 20, 2010, and remaining in effect until the § 14(1) costs ordered by the reviewing board are paid in full.
I suspend Attorney James Ellis from practicing or appearing before the department for a minimum period of fifty (50) days, beginning on April 20, 2010, and remaining in effect until the § 14(1) costs ordered by the reviewing board are paid in full.
An appeal may be taken from these orders under the provisions of § 7C.
Filed: April 8, 2010