Decision  Carole Evangelista v. Community Systems, Inc.

Date:	03/09/2016
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 041551-05
Location:	Boston

Insurer: Atlantic Charter Insurance Company

CALLIOTTE, J. The Third Party Claimant, James N. Ellis, Sr., (hereinafter "Ellis"), the employee’s former counsel, appeals from a decision ordering the release of monies held in escrow from a lump sum settlement, to the employee and successor counsel, Steven M. Buckley (hereinafter "Buckley").^{1, 2} The decision also denied Ellis’ motion for the judge’s recusal. Ellis’s sole contention on appeal is that the judge violated the "Model Code of Judicial Conduct for State Administrative Law Judges" by denying Ellis’s motion that he recuse himself due to bias. We affirm the decision, and, in addition, order that the cost of the appellate proceeding be assessed against Ellis pursuant to G. L. c. 152, § 14(1).

¹ On March 10, 2011, Ellis filed a "Third Party Claim/Notice of Lien" for attorney’s services and out-of-pocket expenses totaling $8,585.37. See G.L. c. 221, § 50. However, Buckley actually initiated the dispute resolution process in the case before us through his "Third Party Claim/Notice of Lien," filed March 14, 2014. Ellis appealed the resulting conference order and hearing decision, thus becoming the de facto third party claimant. See Rodriguez v. Carilorz Corp., 23 Mass. Workers’ Comp. Rep. 89, 90 n.3 (2009), citing Cordeiro v. New England Specialized Concrete, 22 Mass. Workers’ Comp. Rep. 349, 354 (2008). In fact, he refers to himself as such. (Third Party Claimant’s br., 1.) We do not adopt the judge’s reference to Ellis as the "Case Party."

² Because the decision does not recite the history of the case, we refer to the board file for documentation throughout. See Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3 (2016)(permissible for reviewing board to take judicial notice of board file).