Decision  David Leveille (Employee), James N. Ellis, Esq. (3rd Party Claimant) v. St. Paul Travelers Ins. Co.

Date:	01/24/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 031303-04
Location:	Boston

• Third-party Claimant: James N. Ellis, Esq. (1)
• Employee: David Leveille
• Insurer: St. Paul Travelers Ins. Co.

HORAN, J. This case comes to us on cross appeals, Both parties maintain the judge erred by failing to assess costs and penalties pursuant to G. L. c. 152, § 14.²  We affirm the decision.

¹  The third party claimant, who also continues to represent the employee, filed the instant third party claim for § 13A(5) attorney fees and costs stemming from his representation of the employee at a prior hearing. (Employee br. 2.) The insurer filed a motion to dismiss the claim, but it was denied by the judge, in part because the judge found the appeal of the underlying conference order, filed by the claimant on behalf of the employee, was sufficient to preserve the § 13A(5) issue for hearing. (Tr. I, 8.) On appeal, the insurer does not challenge the judge's denial of its motion to dismiss, nor does it raise any issue respecting the judge's authority to decide the attorney's fee issue.

²  The employee's brief merely refers to the judge's failure to assess penalties under "§ 14," and does not designate any particular subsection of the statute. the insurer argues the judge erred in failing to assess penalties pursuant to G. L. c. 152 §§ 14(2) and (3); these sections provide, in pertinent part:

(2) if it is determined that in any proceeding within the division of dispute resolution, a party, including an attorney . . . concealed or knowingly failed to disclose that which is required by law to be revealed, knowingly use perjured testimony or false evidence, knowingly made a false statement of fact or law, participated in the creation or presentation of evidence which he knows to be false or otherwise engaged in conduct that such party knew to be illegal or fraudulent, the party's conduct shall be reported to the general counsel of the insurance fraud bureau. Notwithstanding any action the insurance fraud bureau may take, the party shall be assessed, in addition to  the whole costs of such proceedings and attorney's fees, a penalty payable to the aggrieved insurer or employee, in an amount not less than the average weekly wage in the commonwealth multiplied by six.

(3) Notwithstanding any provision of section one hundred and eleven A of chapter two hundred and sixty-six to the contrary, any person who knowingly makes any false or misleading statement, representation or submission or knowingly assists, abets, solicits or conspires in the making of any false or misleading statement, representation or submission, or knowingly conceals or fails to disclose knowledge of the occurrence of any event affecting the payment, coverage or other benefit under this chapter . . . shall be punished by imprisonment in the state prison for not more than five years or by imprisonment in jail for not less than six month nor more than two and one-half years or by a fine of not less than one thousand nor more than ten thousand dollars, or by both such fine and imprisonment.