June 24, 2021
Supreme Court
No. 2019-423-M.P. (16-7082)
Timothy Koback :
v. :
Municipal Employees’ Retirement System of Rhode Island. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Lynch Prata, for the Court. The respondent, Municipal Employees’
Retirement System of Rhode Island (MERS),1 seeks review of a decree of the
Appellate Division of the Workers’ Compensation Court (WCC), awarding
attorneys’ fees and costs to the petitioner, Timothy Koback. The respondent claims
the WCC and its Appellate Division lack the statutory authority to award attorneys’
fees and costs. The respondent also maintains that even if attorneys’ fees are proper,
the petitioner did not submit legally sufficient evidence to support such fees under
1 The matter as filed with the Workers’ Compensation Court incorrectly captioned the case and named the respondent “Employees’ Retirement System of Rhode Island.” The correct name of the respondent is the Municipal Employees’ Retirement System of Rhode Island or MERS. Consequently, we have utilized the correct name of the respondent throughout this opinion, and have properly captioned the case in this Court. -1- our precedent. For the reasons set forth in this opinion, we quash the decree of the
Appellate Division of the WCC.
Facts and Travel
The underlying facts of this case are not in dispute. The petitioner was
employed as a firefighter by the City of Woonsocket. On March 24, 2012, during
the performance of his duties as a firefighter, he sustained a herniated disc injury to
his lower back while assisting in a patient transfer. The petitioner filed his
application for accidental disability retirement (ADR) benefits with the respondent
retirement board on September 19, 2013. As mandated by G.L. 1956 § 45-21.2-9(a),
he was examined by three physicians engaged by the retirement board to assist the
board in rendering a decision on petitioner’s ADR application.
On November 10, 2015, the retirement board denied petitioner’s ADR
application, finding that petitioner had failed to prove that his injury arose out of and
in the course of his duties as a firefighter. The retirement board instead approved
petitioner’s application for ordinary disability retirement. The petitioner requested
reconsideration of the decision; and in a letter dated November 18, 2016, the
retirement board affirmed its decision to deny petitioner’s ADR application.
The petitioner then appealed the retirement board’s adverse ruling to the
WCC. In accordance with the WCC’s rules, practices, and procedures, the matter
-2- was assigned to a trial judge. On May 23, 2017, the trial judge issued a pretrial order
denying the petition, from which petitioner filed a timely claim for a trial de novo.
After a full trial, the trial judge issued a written decision granting petitioner’s
petition seeking ADR benefits and awarding a counsel fee to petitioner’s counsel.
In support of his application for attorneys’ fees, petitioner’s counsel submitted a fee
affidavit, detailing the work his office performed and the hours spent on the case,
along with a list of fees and costs incurred, for a total bill of $10,442.02. The
respondent objected, arguing that the WCC lacked statutory aut hority to award
attorneys’ fees. The petitioner’s counsel later submitted a supplemental affidavit,
attesting to his credentials and the difficulty of the case, and filed an affidavit billing
an additional $2,790 for work performed after the WCC rendered its decision. A
hearing was held before the WCC. The trial judge determined that the WCC had
statutory authority to award attorneys’ fees and concluded that a fee in the amount
of $12,000 was fair and reasonable in this case. A decree was entered ordering that
petitioner was to be paid ADR benefits and that his attorney be paid a fee of $12,000,
plus costs of $418.27.
The respondent then filed an appeal to the Appellate Division, challenging
only the award of attorneys’ fees and costs to petitioner’s counsel, and contesting
the WCC’s authority to award attorneys’ fees and costs in ADR claims.
-3- In its decision, the Appellate Division rejected respondent’s arguments,
finding that the WCC had statutory authority to award fees and costs in ADR cases.
The Appellate Division reasoned that appeals in such cases may be considered
“proceedings” and the notice of appeal to the WCC may be considered a petition,
within the meaning of G.L. 1956 § 28-35-32.2 According to the decision, a contrary
ruling would “elevate form over substance.” The Appellate Division determined
that petitioner, as a firefighter who filed a claim for ADR benefits, was an
“employee” as that term is defined in G.L. 1956 § 28-29-2(4). The court also
determined that ADR benefits are a form of compensation within the meaning of
§ 28-35-32.
The Appellate Division then considered respondent’s argument that the
affidavits submitted by petitioner’s attorney were insufficient to support an award of
2 General Laws 1956 § 28-35-32, titled “Costs—Counsel and witness fees[,]” requires an award of attorneys’ fees in most workers’ compensation cases. That provision is the primary focus of this case, and provides, in pertinent part:
“In proceedings under this chapter, and in proceedings under chapter 37 of this title, costs shall be awarded, including counsel fees and fees for medical and other expert witnesses, including interpreters, to employees who successfully prosecute petitions for compensation; petitions for medical expenses; petitions to amend a preliminary order or memorandum of agreement; and all other employee petitions, except petitions for lump-sum commutation * * * .”
-4- attorneys’ fees. The decision observed that the affidavits were never “formally
introduced as exhibits for the court to review.” Thus, the Appellate Division
reasoned, there was no need for a disinterested attorney to vouch for the
reasonableness and necessity of fees contained in a fee affidavit. Despite the absence
of a formally introduced affidavit, the Appellate Division upheld the fee awarded by
the trial judge and imposed an additional fee of $2,500 for counsel’s work before the
Appellate Division. A final decree was entered on October 22, 2019, and respondent
filed a timely petition for writ of certiorari with this Court. We granted the petition
on November 18, 2019, and the writ of certiorari issued on that same day.
Standard of Review
This Court’s “review of a case on certiorari is limited to an examination of the
record to determine if an error of law has been committed.” Lang v. Municipal
Employees’ Retirement System of Rhode Island, 222 A.3d 912, 914-15 (R.I. 2019)
(quoting Plante v. Stack, 109 A.3d 846, 853 (R.I. 2015)). The Court will “examin[e]
the record for judicial error * * * [and] inspect the record to discern if there is any
legally competent evidence to support the findings of the hearing justice below.” Id.
at 915 (quoting Plante, 109 A.3d at 853).
Additionally, § 28-35-30 sets forth the grounds upon which this Court may
review a decision of the Appellate Division. The statute states in part that
“[u]pon petition for certiorari, the [S]upreme [C]ourt may affirm, set aside, or modify any decree of the appellate -5- commission of the workers’ compensation court only upon the following grounds:
“(1) That the workers’ compensation court acted without or in excess of its authority;
“(2) That the order, decree, or award was procured by fraud; or
“(3) That the appellate division erred on questions of law or equity, the petitioner first having had his objections noted to any adverse rulings made during the progress of the hearing at the time the rulings were made, if made in open hearing and not otherwise of record.” Section 28-35-30(a).
Furthermore, we review questions of statutory interpretation de novo. Lang,
222 A.3d at 915. “In so doing, [the Court’s] ultimate goal is to give effect to the
purpose of the act as intended by the Legislature.” Id. (quoting Bluedog Capital
Partners, LLC v. Murphy, 206 A.3d 694, 699 (R.I. 2019)). If the statute is clear and
unambiguous, the Court will “interpret the statute literally and * * * give the words
of the statute their plain and ordinary meanings.” Id. (quoting In re B.H., 194 A.3d
260, 264 (R.I. 2018)). “The Legislature is presumed to have intended each word or
provision of a statute to express a significant meaning, and the Court will give effect
to every word, clause, or sentence, whenever possible.” Id. (quoting In re B.H., 194
A.3d at 264). However, “this Court will not construe a statute to reach an absurd
result.” Id. (quoting In re B.H., 194 A.3d at 264).
-6- Finally, we note that this Court has “staunchly adhered to the ‘American rule’
that requires each litigant to pay its own attorney’s fees absent statutory authority or
contractual liability.” Tri-Town Construction Company, Inc. v. Commerce Park
Associates 12, LLC, 139 A.3d 467, 478 (R.I. 2016) (brackets omitted) (quoting Shine
v. Moreau, 119 A.3d 1, 8 (R.I. 2015)). We have also concluded that “when a rule is
silent regarding attorneys’ fees, there is ‘no room for implication by judicial
construction’ and attorneys’ fees are not available under the statute.” Shine, 119
A.3d at 10 (quoting Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217, 1221 (R.I.
1990)).
Discussion
On certiorari, respondent raises three arguments. The respondent first claims
that the WCC and its Appellate Division lack the authority to award attorneys’ fees
and costs following an appeal from a decision of the retirement board pursuant to
§ 45-21.2-9(f). Second, respondent contends that § 28-35-32, the attorneys’ fees
provision of the Workers’ Compensation Act, chapters 29 through 37 of title 28 of
the general laws (WCA), does not provide for an award of attorneys’ fees in this case
because petitioner’s claim does not fall into one of the statutorily authorized
categories allowing for an award of fees or costs. Third, respondent maintains that,
assuming arguendo that attorneys’ fees are proper, petitioner did not submit legally
sufficient evidence to support such fees under this Court’s precedent.
-7- Statutory Authority to Award Attorneys’ Fees
Because this Court is tasked with determining the interplay between several
statutory provisions to resolve this case, we think it is necessary to provide a brief
review of those statutes and the legislative history regarding the WCC’s jurisdiction
to hear ADR claims.
Prior to July 1, 2011, a party wishing to challenge an adverse ADR decision
made by the retirement board was required to file an administrative appeal to the
Superior Court pursuant to G.L. 1956 § 42-35-15 of the Administrative Procedures
Act (APA). However, in 2011, the General Assembly changed the forum for
litigants and granted jurisdiction to the WCC to hear ADR claims filed by certain
parties aggrieved by a determination made by the retirement board for injuries
occurring after July 1, 2011. 3 See P.L. 2011, ch. 151, art. 12, § 8 (effective June 29,
2011); see also § 45-21.2-9. In granting such authority to the WCC, the General
Assembly made numerous other changes to the ADR and workers’ compensation
statutes.4
3 It is undisputed that petitioner was within his right to appeal to the WCC as a party “aggrieved by the determination” of the retirement board. See G.L. 1956 § 45-21.2-9(f). 4 This Court is mindful that there were further legislative changes to § 45-21.2-9 in both 2013 and 2017. However, those amendments are not applicable to petitioner’s claim because his injury occurred in 2012. -8- For example, § 45-21.2-9, which provides for ADR benefits, was amended in
2011 by adding six new sections, as follows:
“(f) In the event that any party is aggrieved by the determination of the retirement board pursuant to § 45-19-1, for an injury occurring on or after July 1, 2011, the party may submit an appeal to the Rhode Island workers’ compensation court. The appellant shall file a notice of appeal with the retirement board and shall serve a copy of the notice of appeal upon the opposing party.
“(g) Within twenty (20) days of the receipt of the notice of appeal, the retirement board shall transmit the entire record of proceedings before it, together with its order, to the workers’ compensation court.
“(h) In the event that a party files a notice of appeal to the workers’ compensation court, the order of the retirement board shall be stayed pending further action by the court pursuant to the provisions of Rhode Island general law § 28-35-20.
“(i) Upon receipt of the record of proceedings before the retirement board, the court shall assign the matter to a judge and shall issue a notice at the time advising the parties of the judge to whom the case has been assigned and the date for pretrial conference in accordance with Rhode Island general law § 28-35-20.
“(j) All proceedings filed with the workers’ compensation court pursuant to this section shall be de novo and shall be subject to the provisions of chapters 29 to 38 of Title 28 for all case management procedures and dispute resolution processes, as provided under the rules of workers’ compensation court. Where the matter has been heard and decided by the workers’ compensation court, the court shall retain jurisdiction to review any prior orders or decrees entered by it. Such petitions to review shall be filed directly with the workers’ compensation court and -9- shall be subject to the case management and dispute resolution procedures set forth in chapters 29 through 38 of title 28 (“Labor and Labor Relations”).
“(k) If the court determines that a member qualifies for accidental disability retirement, the member shall receive a retirement allowance equal to sixty-six and two-thirds percent (66 2/3 %) of the rate of the member’s compensation at the date of the member’s retirement, subject to the provisions of § 45-21-31.” Section 45-21.2-9 (as amended by P.L. 2011, ch. 151, art. 12, § 8 (effective June 29, 2011)).
In addition to amending § 45-21.2-9, the General Assembly also amended
eight specific sections of the WCA, namely §§ 28-29-2(4), 28-29-2(5), and
28-29-26; G.L. 1956 §§ 28-30-1 and 28-30-13; §§ 28-35-11 and 28-35-27; and G.L.
1956 § 28-36-5.4. See P.L. 2011, ch. 151, art. 12, § 8.
Further, § 45-21.2-9(h) and (i), quoted supra, make reference to § 28-35-20,
which states in pertinent part:
“(c) At the pretrial conference, the judge shall make every effort to resolve any controversies or to plan for any subsequent trial of the case. * * * Subject to the provisions of § 45-21.2-9(j), the pretrial order shall be effective upon entry. Any payments ordered by it including, but not limited to, weekly benefits, medical expenses, costs, and attorney’s fees, shall be paid within fourteen (14) days of the entry of the order.” Section 28-35-20.
In comparing the previous avenue of relief afforded to aggrieved parties in
disputes concerning an appeal of ADR benefits available in the Superior Court
through the APA to the present avenue of relief offered in the WCC, it is clear that
- 10 - the General Assembly intended to provide a more expansive forum within which
claims for ADR benefits are decided and adjudicated. Litigants are now provided
with a de novo review of the retirement board’s decision, which allows the parties
to utilize all of the practices and procedures of the WCC. This includes allowing the
parties access to the internal workers’ compensation court procedures consisting of
a pretrial conference as set out supra in § 28-35-20(c), an initial hearing, and a full
trial on the merits.
However, nowhere in § 45-21.2-9 is there specific authority for the WCC to
award attorneys’ fees and costs to those aggrieved applicants for ADR benefits
whose claims are successful. See Lang, 222 A.3d at 915 (concluding that this Court’s
“ultimate goal is to give effect to the purpose of the act as intended by the
Legislature”) (quoting Bluedog Capital Partners, LLC, 206 A.3d at 699). Indeed,
the language of § 45-21.2-9 does not include the terms “attorneys’ fees” or “costs.”
The APA—specifically § 42-35-15—which governs all other appeals of decisions
of the retirement board, also does not provide for awards of counsel fees or costs to
successful appellants.
As stated supra, § 45-21.2-9(f) and subsequent subsections were established
to afford an aggrieved applicant with the ability to take an appeal from a decision of
the retirement board to the WCC for a de novo review, utilizing the “case
management procedures and dispute resolution processes” afforded by the WCA.
- 11 - Section 42-21.2-9(j). Section 45-21.2-9(h) further describes the procedure for
pursuing an appeal in the WCC and states that, following the filing of the notice of
appeal, “the order of the retirement board shall be stayed pending further action by
the court pursuant to the provisions of § 28-35-20.”
The next subsection, § 45-21.2-9(i), additionally provides that, upon receipt
of the notice of appeal, the WCC shall assign the matter to a judge and issue notice
of that assignment as well as “the date for pretrial conference in accordance with
§ 28-35-20.” As such, the statute expressly invokes and affords aggrieved applicants
with the hearing structure provided for in § 28-35-20, consisting of a pretrial
conference, the issuance of a pretrial order, and the right to claim a trial. See
§ 28-35-20.
However, invocation of the pretrial-hearing process provided for in
§ 28-35-20 does not confer upon the WCC the statutory authority to award attorneys’
fees and costs. The statute merely affords the applicant the ability to be heard in
proceedings available to the applicant in the WCC.
Section 28-35-20(c) provides that, at the close of a pretrial conference, the
judge must issue a pretrial order granting or denying, in whole or in part, the relief
sought. That section further provides that payments ordered by the court are payable
within fourteen days, including but not limited to “weekly benefits, medical
expenses, costs, and attorneys’ fees[.]” Section 28-35-20(c). Based on this language,
- 12 - the Appellate Division concluded that attorneys’ fees can be awarded to an applicant
for ADR benefits on appeal from the retirement board.
However, nothing in § 28-35-20 or § 45-21.2-9 expressly empowers the WCC
to award fees and costs. Rather than making an award of “weekly benefits, medical
expenses, costs, and attorneys’ fees” available, § 28-35-20 merely reflects that a
pretrial order may encompass such items where they are otherwise made available
by law.
If the WCC was independently authorized to award attorneys’ fees and costs
by virtue of reference to § 28-35-20, then the court would also be authorized to award
the other categories of relief referenced, including medical expenses. However, it is
clear that an application for an ADR pension does not include a potential award of
medical expenses. See § 45-21.2-9(k) (stating that when a member qualifies for
ADR, “the member shall receive a retirement allowance equal to sixty-six and
two-thirds percent (66 2/3%) of the rate of the member’s compensation”). Just as
medical expenses are not awardable in proceedings before the WCC in appeals from
the retirement board merely by virtue of reference to § 28-35-20, neither are
attorneys’ fees or costs. See Matter of Falstaff Brewing Corp. Re: Narragansett
Brewery Fire, 637 A.2d 1047, 1050 (R.I. 1994) (holding that, in construing a statute,
the Court must “attribute to the enactment the meaning most consistent with its
policies and with the obvious purposes of the Legislature”). Accordingly, the
- 13 - required strict construction of § 45-21.2-9 and its reference to § 28-35-20 leads us
to the inescapable conclusion that § 45-21.2-9 unambiguously fails to provide for
the award of attorneys’ fees. See Shine, 119 A.3d at 10 (concluding that “our
precedent indicates that a statute must explicitly include attorneys’ fees in order for
a court to award attorneys’ fees pursuant to that statute”).
The petitioner argues that Lang, cited supra, provides binding authority that
attorneys’ fees are to be awarded in successful ADR benefits cases. In Lang, this
Court considered whether the WCC had subject-matter jurisdiction over an appeal
filed by a firefighter after the retirement board denied his application for ADR
benefits based on occupational cancer. Lang, 222 A.3d at 914, 916. In that case, Mr.
Lang applied for ADR benefits in accordance with § 45-21.2-9. Id. at 914. After his
application was denied, he appealed to the WCC, which reversed the retirement
board’s decision and ruled that G.L. 1956 § 45-19.1-1 created a conclusive
presumption that cancer in firefighters arises out of and in the course of their
employment. Id. The Appellate Division affirmed that decision, and MERS sought
review to this Court, arguing that the WCC did not have subject-matter jurisdiction
over Mr. Lang’s appeal from the retirement board.5 Id. at 916.
5 MERS also raised the issue that G.L. 1956 § 45-19.1-1 did not create a conclusive presumption that Mr. Lang’s cancer was an occupational disease. Lang v. Municipal Employees’ Retirement System of Rhode Island, 222 A.3d 912, 918 (R.I. 2019). - 14 - We observed in Lang that the Legislature used broad language in
§ 45-21.2-9(j), and we concluded that “all proceedings are subject to chapters 29–38
of title 28, and the statute contains no limiting language.” Id. at 918. We opined that,
if the Legislature had intended to limit the WCC’s authority to procedural issues
only, it could have provided that proceedings filed in accordance with § 45-21.2-9(j)
were subject only to the procedural provisions contained in chapter 35 of title 28. Id.
Although we concluded in Lang that there was subject-matter jurisdiction
over Mr. Lang’s claim, we nowhere concluded that § 45-21.2-9 gave statutory
authority to award attorneys’ fees or costs. The fact that the WCC has jurisdiction
over ADR appeals does not mean that it has the authority to award attorneys’ fees.
Thus, petitioner’s contention is of no moment, and we need not be concerned about
our holding in Lang being applicable to the award of attorneys’ fees in ADR claims.
Again, our Court’s “staunch[] adhere[nce] to the ‘American rule’ that requires
each litigant to pay its own attorney’s fees” requires that there be explicit statutory
authority for the award of attorneys’ fees. Tri-Town Construction Company, Inc.,
139 A.3d at 478. The General Assembly’s deliberate silence and the absence of any
explicit authority concerning the award of counsel fees and costs in § 45-21.2-9 is
significant. See Rivera v. Employees’ Retirement System of Rhode Island, 70 A.3d
905, 910 (R.I. 2013) (“[W]e are not privileged to legislate, by inclusion, words which
- 15 - are not found in the statute.”) (quoting Wayne Distributing Co. v. Rhode Island
Commission for Human Rights, 673 A.2d 457, 460 (R.I. 1996)).
Thus, it is clear to us that the General Assembly has not conveyed specific
statutory authority upon the WCC to award attorneys’ fees and costs in successful
ADR appeal claims. See Eleazer, 576 A.2d at 1221 (concluding that “the right to
collect attorney’s fees did not exist at common law and that * * * consequently such
fees may be taxed only when there is either specific statutory authority or contractual
liability”). We therefore conclude that the Appellate Division of the WCC acted in
excess of its statutory authority in concluding that § 45-21.2-9 conferred authority
to award attorneys’ fees in this case.
Other Issues
In light of our holding in this case, we need not, and shall not, reach the other
issues raised by the respondent.
Conclusion
For the reasons set forth in this opinion, we quash the decree of the Appellate
Division of the WCC. The record may be returned to the WCC with our decision
endorsed therein.
- 16 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Timothy Koback v. Municipal Employees' Retirement Title of Case System of Rhode Island. No. 2019-423-M.P. Case Number (16-7082)
Date Opinion Filed June 24, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Associate Justice Erin Lynch Prata
Appellate Division of the Workers' Compensation Source of Appeal Court Associate Judge Debra L. Olsson Judicial Officer from Lower Court Associate Judge Robert E. Hardman Associate Judge Alfredo T. Conte For Petitioner:
John M. Harnett, Esq. Attorney(s) on Appeal For Respondent:
Michael P. Robinson, Esq.
SU-CMS-02A (revised June 2020)