Koback v. Employees' Retirement System of Rhode Island, 102219 RIWC, 2016-07082

Case DateOctober 22, 2019
CourtRhode Island
TIMOTHY KOBACK
v.
EMPLOYEES' RETIREMENT SYSTEM OF RHODE ISLAND
W.C.C No. 2016-07082
Rhode Island Worker Compensation
State of Rhode Island and Providence Plantations Providence
October 22, 2019
         FINAL DECREE OF THE APPELLATE DIVISION          This matter came on to be heard by the Appellate Division upon the claim of appeal of the respondent and upon consideration thereof, the respondent's appeal is denied and dismissed, and it is          ORDERED, ADJUDGED, AND DECREED:          1. That the findings and orders contained in a decree of this Court entered on May 4, 2018 be, and they hereby are, affirmed.          2. That the respondent shall pay a counsel fee in the amount of Two Thousand Five Hundred and 00/100 ($2,500.00) Dollars to John M. Harnett, Esq., attorney for the employee, for services rendered in the successful defense of the respondent's claim of appeal.          PER ORDER:          Nicholas DiFilippo, Administrator           DECISION OF THE APPELLATE DIVISION           CONTE, J.          This case comes before the Appellate Division on the appeal of the Municipal Employees' Retirement System of Rhode Island[1] (MERS) from the decision and decree entered by the trial judge ordering MERS to pay counsel fees and costs to the employee's counsel as a result of the employee's successful prosecution of his claim seeking accidental disability retirement (ADR) benefits.          The underlying facts of this matter are not in dispute. Timothy Koback (Koback[2]) was employed as a firefighter by the City of Woonsocket On March 24, 2012, while in the performance of his duties as a firefighter, he sustained a herniated disc injury to his low back while assisting in a patient transfer. On April 21, 2012, the Woonsocket Fire Department agreed to place Koback on Injured-on-Duty (IOD) status pursuant to Rhode Island General Laws § 45-19-1, and as a result he began receiving salary payments and benefits while incapacitated from work. In accordance with Rhode Island General Laws § 45-19-1 (j), which requires that an employee on IOD status file for ADR benefits within eighteen (18) months after his or her injury, Koback filed his application for ADR benefits with the Retirement Board on September 19, 2013. As mandated by Rhode Island General Laws § 45-21.2-9(a), he was examined by three (3) physicians engaged by the Retirement Board to assist them in rendering a decision on his ADR application. On November 10,2015, the Retirement Board denied his application and affirmed the findings and decision of the Disability Subcommittee which concluded that Koback had failed to prove that his injury arose out of and in the course of his duties as a firefighter. Koback requested reconsideration of the Board's decision; however, in a letter dated November 18, 2016, the Retirement Board affirmed its decision to deny his ADR application.          As provided for in Rhode Island General Laws § 45-21, 2-9(f), Koback appealed the adverse ruling made by the Retirement Board to the Workers' Compensation Court (WCC). In accordance with the WCC's rules, practices, and procedures, the matter was assigned to a trial judge, and a pretrial conference was scheduled. On May 23, 2017, the trial judge issued a pretrial order denying Koback's petition, from which Koback filed a timely claim for trial requesting a trial de novo.          After a full trial, the trial judge issued a written decision on April 27, 2018 granting Koback's petition seeking ADR benefits and awarding counsel fees and costs to Koback's counsel. A trial decree was entered by the court on May 4, 2018. From the adverse trial decision and decree, MERS filed this appeal to the Appellate Division, not seeking to challenge the trial judge's decision granting Koback's ADR benefits, but instead challenging the award of counsel fees and costs to Koback's counsel and contesting this court's authority to award counsel fees and costs in ADR claims.          Before addressing the issues raised on appeal by MERS, we believe that an analysis of how this court obtained jurisdiction to hear ADR claims pursuant to Rhode Island General Laws §45-21.2-9 is essential. 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 Rhode Island General Laws § 42-35-15, commonly referred to as the Administrative Procedures Act (APA). In accordance with § 42-35-15(f), the appeals were heard in the forum of the Superior Court where the review was limited and confined to the record already established at the Retirement Board, and the court only entertained oral argument and written briefs by the parties. A de novo hearing on the merits and on the record was not available to the litigants. The Superior Court's review was in essence a review process of the record already established at the Retirement Board hearing, and the standard of review applied by the Superior Court was governed by Rhode Island General Laws § 42-35-15(g) as follows:
The court shall not substitute its judgement for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or
(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
         By legislative enactment, Public Law 2011, Chapter 151, Article 12, was passed by the General Assembly changing the forum for the litigants and granting jurisdiction to the WCC with the authority to hear ADR claims filed by any party aggrieved by a determination made by the Retirement Board relative to injuries occurring on or after July 1, 2011. In so granting the WCC with such jurisdiction and authority, the General Assembly took great pains to make multiple changes to the ADR and workers' compensation statutes in order to accomplish this objective.          The General Assembly amended the ADR statute, § 45-21.2-9, by enacting six (6) new sections, (f) through (k), as follows:[3]
(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 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
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