Ellis v. Commissioner of the Department of Industrial Accidents, et al. (Lawyers Weekly No. 11-148-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-402                                        Appeals Court   JAMES ELLIS[1]  vs.  COMMISSIONER OF THE DEPARTMENT OF INDUSTRIAL ACCIDENTS & another.[2] No. 13-P-402. Suffolk.     October 10, 2013. – September 18, 2015.   Present:  Berry, Green, & Trainor, JJ. Workers’ Compensation Act, Lump-sum settlement, Attorney’s fees.  Administrative Law, Judicial review.  Practice, Civil, Frivolous action.       Civil action commenced in the Superior Court Department on May 28, 2008.   The case was heard by Geraldine S. Hines, J., on a motion for summary judgment.     Teresa Brooks Benoit for the plaintiff. Timothy J. Casey, Assistant Attorney General, for Commissioner of the Department of Industrial Accidents. Michael K. Landman, for Landman, Akashian & White, P.C., was present but did not argue.      BERRY, J.  Reduced to essentials, in this latest appellate foray, the plaintiff, James Ellis, contends that, in considering whether to approve a lump sum agreement under § 48 of G. L. c. 152, the Workers’ Compensation Act (act), for injuries to a worker, an administrative judge of the Department of Industrial Accidents (department) or a law judge on the department’s reviewing board (reviewing board) (hereinafter collectively referred to as administrative judge) is absolutely foreclosed from reviewing the authenticity of the legal expenses and from adjusting those expenses downward, leaving more money for the injured worker under the lump sum settlement payment. We reject Ellis’s contentions regarding total unreviewability of the claimed legal expenses.  Ellis offers no precedent, i.e., no caselaw or statutory authority, for this proposition.  See note 8, infra.  We conclude that an administrative judge — in review of a proposed lump sum awarded and to be paid in settlement to an injured worker — does have the authority to review and adjust downward unsubstantiated or unreasonably excessive attorney’s fees and expenses.  Put another way, it is within the purview of an administrative judge to modify the amount allocated in the lump sum settlement to an employee’s attorney for attorney’s fees and necessary expenses where the fees and expenses, upon review, are insufficiently supported or deemed not necessary, and the administrative judge, by such an adjustment, neither increases the burden on the insurer nor decreases the net sum to be paid to the employee. In the past five years alone, Ellis or his legal assistants (collectively, Ellis) have filed over one hundred and fifty workers’ compensation appeals in this court.  In a substantial number […]

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