ALLEN ARBOGAST vs. EMPLOYERS INSURANCE OF WAUSAU.

ALLEN ARBOGAST vs. EMPLOYERS INSURANCE OF WAUSAU.

26 Mass. App. Ct. 719

November 14, 1988 - December 29, 1988

Suffolk County

Present: GREANEY, C.J., KAPLAN, & KASS, JJ.

The action of a Superior Court judge in refusing enforcement of an order of an administrative judge entered under G. L. c. 152, Section 12 (1), was immediately appealable. [721]

A Superior Court judge has no discretion to deny enforcement of an order entered by an administrative judge in the Department of Industrial Accidents, awarding an employee compensation and attorney's fees under G. L. c. 152 Section 12 (1). [721]

This court was of opinion that the Legislature's enactment of St. 1987, c. 691, Section 8, to correct the unintended omission, when it substantially revised the Workmen's Compensation Act, of a provision for the award of attorney's fees in connection with an employee's successful proceeding under G. L. c. 152, was procedural in nature, and not affecting any substantive interest, and was therefore fully retroactive to injuries occurring before November 1, 1986, the date the revisions to the statute became effective. [721-723]

CIVIL ACTION commenced in the Superior Court Department on September 11, 1987.

The case was heard by Paul K. Connolly, J.

Pasquale J. Ventola for the employee.

Salvatore J. Perra for the insurer.

GREANEY, C.J. The employee has appealed from a judgment of the Superior Court denying enforcement of a decision under G. L. c. 152, Section 12(1), as appearing in St. 1985, c. 572, Section 26, of an administrative judge of the Industrial Accident Board. We reverse.

The background of the case is as follows. On March 9, 1977, the employee suffered an occurrence of contact dermatitis during his employment as a grinder by George W. Moore,

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Inc. That company's workers' compensation insurance is provided by Employers Insurance of Wausau. In February, 1985, while employed as a grinder by another company, the employee suffered a more severe recurrence of the dermatological condition initially caused by his work at the Moore company. Wausau, which had been voluntarily paying the employee's medical bills until the employee began working for the second employer, stopped the payments in February, 1985, alleging that the subsequent employment had aggravated the employee's dermatological condition, thereby relieving it of any further liability.

The employee filed a claim against Wausau and the second employer's workers' compensation insurer to determine which insurer was responsible under G. L. c. 152. After a conference pursuant to the former G. L. c. 152, Section 7, as in effect prior to St. 1985, c. 572, Section 18, a single member of the Industrial Accident Board entered orders which (a) directed Wausau to pay the employee temporary total incapacity benefits, and (b) determined that no payments were due from the insurer of the second employer. These orders were appealed by Wausau. A different single member heard evidence pursuant to former G. L. c. 152, Section 8, as in effect prior to St. 1985, c. 572, Section 21. On July 13, 1987, the single member, now called an administrative judge, see G. L. c. 23E, Section 4, as appearing in St. 1985, c. 572, Section 4, rendered a decision which ordered Wausau to pay temporary partial incapacity compensation, expert witness expenses, and attorney's fees to the employee's counsel. The administrative judge denied the claim against the insurer of the second employer. Both the employee and Wausau filed appeals to the reviewing board pursuant to G. L. c. 152, Section 11C, as appearing in St. 1985, c. 572, Section 25.

On September 11, 1987, the employee filed a certified copy of the administrative judge's decision with the Superior Court pursuant to G. L. c. 152, Section 12(1), requesting enforcement of the administrative judge's orders. A judge of the Superior Court entered the "judgment" in issue ordering that "the complaint be dismissed." By the time the appeal was argued Wausau had complied with all the orders of the administrative judge

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except the order directing the payment of attorney's fees to the employee's counsel.

1. The action of the Superior Court judge refusing enforcement of the administrative judge's decision and orders was immediately appealable. Biagini's Case, 22 Mass. App. Ct. 103 , 104 (1986).

2. Section 12(1) of the current G. L. c. 152 provides that the Superior Court, when presented with a decision of an administrative judge or of the reviewing board "shall enforce the order or decision, notwithstanding whether the matters at issue have been appealed and a decision on the merits of the appeal is pending." As has been noted by a commentator on G. L. c. 152: "[t]he language of subsection (1) [of Section 12] is stronger than that of prior Section 11" of c. 152 (as in effect prior to St. 1985, c. 572, Section 25), which spoke of the Superior Court's enforcement duty in terms of the duty to "render a decree in accordance" with the board's or member's decision. Locke, Workmen's Compensation Section 7.21 (1987 Supp. to 2d ed.). Even under the language of the prior Section 11, enforcement of a single member's decision after an evidentiary hearing pursuant to the prior Section 8, was considered to be mandatory, Biagini's Case, 22 Mass. App. Ct. at 104, and cases cited, in order to "maintain a status in favor of the employee, pending the final resolution of the proceedings before the board." Ibid., quoting from Assuncao's Case, 372 Mass. 6 , 10 (1977). The orders of the administrative judge in this case, including the order for payment of attorney's fees, should have been enforced, leaving Wausau to pursue its appeal to the reviewing board on the employee's entitlement to compensation and attorney's fees.

3. Our conclusion that the orders should have been enforced decides the appeal. We choose, however, to pass on Wausau's argument that the employee is not, as matter of law, entitled to attorney's fees because the issue has been argued and appears to be occurring with some frequency before the reviewing board. See Wellesley College v. Attorney Gen., 313 Mass. 722 , 731 (1943); Blood v. Lea, 403 Mass. 430 , 435 (1988).

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Wausau points out that the former Section 12A of G. L. c. 152, which provided for payment of attorney's fees to an employee's counsel in connection with a successful Section 8 proceeding was effective until November 1, 1986, when the section was repealed by St. 1985, c. 572, Section 27. In the new Section 13A(3) of c. 152, as appearing in St. 1985, c. 572, Section 28A, provision is again made for attorney's fees in a successful hearing. By means of St. 1985, c. 572, Section 65, however, Section 13A was expressly deemed substantive for the purposes of G. L. c. 152, Section 2A, [Note 1] and was therefore only applicable to injuries occurring on and after November 1, 1986. Relying on Rival's Case, 383 Mass. 172 , 176 (1981), which states that the decision to award attorney's fees in a proceeding under G. L. c. 152 is solely a legislative one, Wausau concludes that there was no statutory authority for the award of attorney's fees here because, on the date of the administrative judge's decision (July 13, 1987), the old Section 12A had been repealed and the new Section 13A(3), while in effect, was not applicable to any claim which arose prior to November 1, 1986.

The situation described by Wausau is a classic example of an oversight occurring in the course of a large legislative enterprise, in this case the Legislature's overhaul of G. L. c. 152 in 1985. Obviously, the Legislature did not intend to deprive employees of the long established benefit of attorney's fees in the case of a successful result after an insurer's appeal of a conference order. In fact, the imperfection was brought to the Legislature's attention, and cured, by St. 1987, c. 691, Section 8. That statute struck out Section 13A and inserted a new Section 13A in its place. Subsection (7) of the new Section 13A provides that a reasonable attorney's fee shall be paid to an employee who prevails in the insurer's appeal of a conference order. This curative legislation was expressly made applicable to "an order . . . with respect to an injury occurring prior to November first,

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nineteen hundred and eighty-six" and, by St. 1987, c. 691, Section 18, the curative legislation was deemed to be procedural in nature. The legislation, therefore, was fully retroactive, in accordance with the "otherwise expressly provided" language of G. L. c. 152, Section 2A. See note 1, supra. The Legislature's action falls within that body's power to correct an unintended defect in legislation by means of a curative act which does not invade any substantive interest. See Sutherland, Statutory Construction Section 41.11 (1986 revision of 4th ed.). Cf. Canton v. Bruno, 361 Mass. 598 , 606-609 (1972).

The judgment is vacated. The case is remanded to the Superior Court for the entry of a judgment enforcing all of the orders of the administrative judge in her decision of July 13, 1987, pending any further proceedings before the board. The employee's request for attorney's fees and costs in connection with the appeal can be taken up with the Superior Court.

So ordered.

FOOTNOTES

[Note 1] Section 2A, inserted by St. 1946, c. 386, Section 3, provides that legislative acts making certain amendments therein described to G. L. c. 152 shall "be deemed to be substantive in character and shall apply only to personal injuries occurring on and after the effective date of such act[s], unless otherwise expressly provided."