Neff v. Commissioner of the Department of Industrial Accidents

653 N.E.2d 556, 421 Mass. 70, 1995 Mass. LEXIS 331

• Court: Massachusetts Supreme Judicial Court
• Decided: August 9, 1995
• Status: Published

Opinions

Liacos, C.J.

The plaintiff, Colleen Neff, filed this action for declaratory and injunctive relief in the county court pursuant to G. L. c. 231A (1994 ed.). Neff challenges on constitutional grounds the validity of the impartial medical examination fee provision of G. L. c. 152, § 11 A, as appearing in St. 1991, c. 398, § 30. A single justice reserved and reported the case to the full court without decision.

The parties agreed to the following facts. On November 2, 1993, the plaintiff filed a claim for benefits under the provisions of the Workers’ Compensation Act, G. L. c. 152 (1994 ed.) (Act). The plaintiff alleged that she had been injured in the course of her employment and she sought incapacity compensation from August 30, 1991, onward, together with medical benefits. The plaintiff’s claim was denied at the conference level by an administrative judge of the Department of Industrial Accidents (department). The plaintiff filed a timely appeal of the conference order for the purpose of obtaining a de nova hearing on her claim.

Section 11A of the Act, as determined by this court’s opinion in Murphy v. Commissioner of the Dep’t of Indus. Accidents, 418 Mass. 165, 171 (1994) (Murphy II), and supplemented by regulations promulgated by the department, requires a party appealing a conference order in a case involving a medical issue to pay the department a filing fee of $350. The commissioner represents that the Legislature has not appropriated money to the department to pay for impartial medical examinations, and the plaintiff accepts this representation for the purposes of this action. The plaintiff says that she is unable to make the payment of the $350 fee because she is indigent. The commissioner accepts this representation for the purposes of this action.

The plaintiff filed with the department a motion, supported by affidavit, for waiver of the filing fee based on her indigency. The commissioner granted the plaintiff a sixty-day enlargement of time to pay the fee, but declined to waive it. The commissioner construes § 11A of the Act as not authorizing him to waive the fee and as not permitting a hearing of the plaintiff’s compensation claim unless she pays the fee.

Before our decision in Murphy v. Commissioner of the Dep’t of Indus. Accidents, 415 Mass. 218 (1993) (Murphy I), G. L. c. 152, § 11A, provided in pertinent part:

“(2) When any claim or complaint involving a dispute over medical issues is the subject of an appeal of a conference order pursuant to section ten A, the parties shall agree upon an impartial medical examiner from the roster to examine the employee and submit such choice to the administrative judge assigned to the case within ten calendar days of filing the appeal, or said administrative judge shall appoint such examiner from the roster. The insurer or any claimant represented by counsel who files such appeal shall also submit a fee equal to the average weekly wage in the commonwealth at the time of the appeal to defray the cost of the medical examination under this section within ten days of filing said appeal . . .” (emphasis added).

We held in Murphy I, supra at 233, that, insofar as this provision required that a claimant represented by counsel submit a fee not required of unrepresented claimants, it was unconstitutional, as a denial of the equal protection of the law. We held that such a classification violated equal protection principles because it was unsupported by any rational basis, and we remanded the case to the Superior Court for a declaratory judgment consistent with our opinion.¹ On remand, a Superior Court judge ordered that portions of the statute limiting the fee to claimants represented by counsel and setting the fee equal to the average weekly wage in the Commonwealth be struck. The remaining statutory language provided that all claimants appealing from an administrative judge’s denial of workers’ compensation benefits after a conference must pay a filing fee. The fee is $350, which represents the cost to the department of the required impartial medical examination. In Murphy II, supra, we affirmed the order of the Superior Court.

The plaintiff argues that G. L. c. 152, § 11A, after Murphy II, is unconstitutional as applied to her. The plaintiff contends that without a fee waiver in cases of indigency, the statute denies due process and equal protection.

This court will not answer a constitutional question unless it necessarily must be reached. Manor v. Superintendent, Mass. Correctional Inst., Cedar Junction, 416 Mass. 820, 824 (1994), and cases cited. Here, we are able to resolve the issue based on the statute and the intent of the Legislature. See id. In doing so, we “indulge every rational presumption in favor of [the statute’s constitutionality].” Commonwealth v. Lammi, 386 Mass. 299, 301 (1982).

The commissioner refused to grant Neff’s motion for a waiver of the fee required by G. L. c. 152, § 11A (2), because, in his view, that statute and the department’s regulations do not provide for such a waiver for indigent persons. It is true that the statute and regulations have no express provisions for fee waivers for impartial medical examinations. We believe, however, that a reading of the entire statutory scheme for workers’ compensation leads to the conclusion that the Legislature intended to confer on the commissioner the authority to grant to indigent individuals waivers of the fee required by § 11 A.

What we have said regarding the government procurement statute holds true for the workers’ compensation law as well: “The legislative intent is to be ascertained from the statute as a whole, giving to every section, clause and word such force and effect as are reasonably practical to the end that ... the statute will constitute a consistent and harmonious whole, capable of producing a rational result consonant with common sense and sound judgment.” Vining Disposal Serv., Inc. v. Selectmen of Westford, 416 Mass. 35, 38 (1993), quoting Haines v. Town Manager of Mansfield, 320 Mass. 140, 142 (1946). As to the Act, we have stated that “[t]he act is to be interpreted in the light of its purpose and, so far as may be, to promote the accomplishment of its beneficent design.” Young v. Duncan, 218 Mass. 346, 349 (1914).

The Act was enacted as a “humanitarian measure” in response to strong public sentiment that the remedies afforded by actions of tort at common law did not provide adequate protection to workers. Id. at 349. See Murphy I, supra at 222. It is a remedial statute and should be given a broad interpretation, viewed in light of its purpose and to “promote the accomplishment of its beneficent design.” Young v. Duncan, supra. See Panasuk’s Case, 217 Mass. 589, 592 (1914).

In Murphy I, supra at 223-225, we described the four procedural stages of a workers’ compensation dispute. First there is an initial informal conciliatory proceeding. G. L. c. 152, § 10. There appears to be no fee requirement at this stage. Next, the case is referred to the Industrial Accident Board (board) for a conference before an administrative judge of the department. G. L. c. 152, §§ 10, 10A. When a claim is referred to the board, the insurer must pay a fee of sixty-five per cent of the average weekly wage in the Commonwealth. G. L. c. 152, § 10 (5).

The third stage, after the conference, is a hearing before an administrative judge. G. L. c. 152, § 11. Again, there appears to be no fee requirement for proceeding to this stage of a workers’ compensation dispute. There is, however, the requirement of the payment of a fee, equal to the average weekly wage in the Commonwealth (now set by the commissioner at $350), for an impartial medical examination when a medical issue is disputed. G. L. c. 152, § 11A (2). See Murphy II, supra at 170-171; Murphy I, supra at 233. After our decision in Murphy II, any insurer or any claimant who files for a § 11A hearing must pay this fee.

The fourth stage of a workers’ compensation dispute is an appeal to the reviewing board. G. L. c. 152, § 11C. Appellants to the reviewing board must pay a filing fee equal to thirty per cent of the average weekly wage in the Commonwealth. Id. Section 11C expressly provides for a waiver of this fee for indigent claimants.

An appeal from a decision of the reviewing board must be filed in the Appeals Court. G. L. c. 152, § 12. A party may seek enforcement of an order of the reviewing board in the Superior Court. Id. In both the Appeals Court and the Superior Court, as in any court of the Commonwealth, an indigent party may request that the filing fee be waived. G. L. c. 261, §§ 27A-27G (1994 ed.).

On examination of the procedural path described above, it becomes apparent that the Legislature created a system whereby an employee either pays no fee or may have a fee waived for indigency at any point in the dispute except at the stage when an impartial medical examination is mandated. If this examination is not obtained, the proceedings halt and the claimant’s benefits are discontinued. G. L. c. 152, § 11A (2). The plaintiff could not go on to the next stage of the dispute.

The purpose of the workers’ compensation act was to ensure that employees, who give up their rights to sue employers in tort, will recover lost wages and lost earnings capacity and medical expenses resulting from work-related injuries, regardless of fault or forseeability. Murphy I, supra at 222. The Act reflects a legislative decision to treat damages for work-related injuries as a cost of doing business. Id. As noted above, the fees assessed on employee-claimants are few, and, with the one exception we discuss today, may be waived in the case of indigency. The Legislature’s treatment of indigent claimants in this area is consistent with the treatment of indigents in other proceedings. The State’s legislative policy of fair treatment for indigents is expressed in many statutes that provide for waiver of fees for indigent claimants. See, e.g., G. L. c. 261, § 27A-27G (providing for waiver of fees and costs for indigents in any civil, criminal, or juvenile proceeding or appeal in any court); G. L. c. 231, § 60B (1994 ed.) (providing that $6,000 bond in medical malpractice cases may be reduced by single justice on finding of indigency); G. L. c. 218, § 23 (1994 ed.) (giving discretion to set bond for District Court appeals in cases of hardship); G. L. c. 21 ID, § 2 (1994 ed.) (Committee for Public Counsel Services to establish definition, standards, and procedures to determine “indigency”).

We do not believe that the Legislature intended to force a claimant out of the workers’ compensation dispute process merely because the claimant is indigent and cannot pay for an impartial medical examination, especially since an indigent claimant can apply for a fee waiver at every other stage where a fee is required. Such a result would defeat the purpose of the workers’ compensation act and would be inconsistent with express provisions for fee waivers for indigency. “ ‘ “An intention to enact a barren and ineffective provision is not lightly to be imputed to the Legislature.” Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189 (1969). See O’Shea v. Holyoke, 345 Mass. 175, 179 (1962). . . . “[T]he duty devolves upon us to give . . . [the statute] a reasonable construction.” Massachusetts Turnpike Auth. v. Commonwealth, 347 Mass. 524, 528 (1964). In doing so, we should take care to construe the statute to carry out the legislative intent . . . .’ (Citations omitted.) Massachusetts Comm’n Against Discrimination v. Liberty Mut. Ins. Co., 371 Mass. 186, 190 (1976).” Commonwealth v. Great Atl. & Pac. Tea Co., 404 Mass. 476, 481 (1989).

We conclude that the Legislature intended to give the commissioner authority to grant requests for waivers of the impartial medical examination fee for indigent claimants, even those represented by attorneys. See Murphy I, supra at 231 (noting that disadvantaged claimants are able to hire attorneys whose fees are paid by insurers, but may be unable to pay impartial medical examination fee). Indeed, as enacted by St. 1991, c. 389, G. L. c. 152, § 11 A, provided that insurers and claimants represented by attorneys were required to pay impartial medical examination fees; pro se claimants were not. This wording at least suggests a concern that pro se claimants, who are likely to be indigent, may not be able to pay and thus no fee should be required of them. “The employee in the circumstances prescribed by [the Act] is at least in misfortune, because he has received personal injuries. He may be presumed commonly to be somewhat needy.” Ahmed’s Case, 278 Mass. 180, 187 (1932). Assuming this to be the case, there was little need to include an express fee waiver provision.

The commissioner’s contention that the Legislature did not show an intent to allow waivers because it did not appropriate funds to cover the costs of such examinations for indigent claimants is unpersuasive. Unfunded mandates from Legislatures, both Federal and State, are an unfortunate but common fact of life in the operation of government agencies.

We conclude that, consistent with the intent of the Legislature, the workers’ compensation statute implicitly confers on the commissioner the authority to grant waivers of the impartial medical examination fee required by G. L. c. 152, § 11A, for indigent claimants, even those represented by attorneys. Interpreting the statute in this way obviates the need for us to discuss Neff’s constitutional arguments. Cf. Paro v. Longwood Hosp., 373 Mass. 645, 652 (1977) (constitutional question avoided because statute conferred discretion on judge to set bond amount in medical malpractice actions, thus preventing potential constitutional violation).

The case is remanded to the county court for further proceedings consistent with this opinion.

So ordered.

1 We did not consider any claims pertaining to alleged violations of Murphy’s due process rights.