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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