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13-P-402 Appeals Court

JAMES ELLIS1 vs. COMMISSIONER OF THE DEPARTMENT OF INDUSTRIAL 

ACCIDENTS & another.2

No. 13-P-402.

Suffolk. October 10, 2013. - September 18, 2015.

Present: Berry, Green, & Trainor, JJ.

Workers' Compensation Act, Lump-sum settlement, Attorney's fees. 

Administrative Law, Judicial review. Practice, Civil, 

Frivolous action.

Civil action commenced in the Superior Court Department on 

May 28, 2008. 

The case was heard by Geraldine S. Hines, J., on a motion 

for summary judgment.

Teresa Brooks Benoit for the plaintiff.

Timothy J. Casey, Assistant Attorney General, for 

Commissioner of the Department of Industrial Accidents.

Michael K. Landman, for Landman, Akashian & White, P.C., 

was present but did not argue.

 

1 Doing business as Ellis & Associates.

2 Landman, Akashian & White, P.C., as a reach and apply 

defendant.
2

BERRY, J. Reduced to essentials, in this latest appellate 

foray, the plaintiff, James Ellis, contends that, in considering 

whether to approve a lump sum agreement under § 48 of G. L. 

c. 152, the Workers' Compensation Act (act), for injuries to a 

worker, an administrative judge of the Department of Industrial 

Accidents (department) or a law judge on the department's 

reviewing board (reviewing board) (hereinafter collectively

referred to as administrative judge) is absolutely foreclosed 

from reviewing the authenticity of the legal expenses and from 

adjusting those expenses downward, leaving more money for the 

injured worker under the lump sum settlement payment. 

We reject Ellis's contentions regarding total 

unreviewability of the claimed legal expenses. Ellis offers no

precedent, i.e., no caselaw or statutory authority, for this 

proposition. See note 8, infra. We conclude that an 

administrative judge -- in review of a proposed lump sum awarded 

and to be paid in settlement to an injured worker -- does have 

the authority to review and adjust downward unsubstantiated or 

unreasonably excessive attorney's fees and expenses. Put 

another way, it is within the purview of an administrative judge 

to modify the amount allocated in the lump sum settlement to an 

employee's attorney for attorney's fees and necessary expenses

where the fees and expenses, upon review, are insufficiently 

supported or deemed not necessary, and the administrative judge, 
3

by such an adjustment, neither increases the burden on the 

insurer nor decreases the net sum to be paid to the employee.

In the past five years alone, Ellis or his legal assistants

(collectively, Ellis) have filed over one hundred and fifty

workers' compensation appeals in this court. In a substantial 

number of these appeals, Ellis also sought further appellate 

review in the Supreme Judicial Court where this court decided 

the appeals adversely to the contentions advanced. Ellis's

attorney's fees and expenses frequently have been the main 

subject in these appeals.

3 In a series of these cases, Ellis has 

 

3 See, e.g., Ellis v. OneBeacon Ins. Group, 76 Mass. App. 

Ct. 1115 (2010) (taking frivolous position that Ellis's attorney 

lien supersedes Division of Medical Assistance lien); Cordeiro's 

Case, 76 Mass. App. Ct. 1117 (2010) (challenging entitlement of 

predecessor attorney to fees even though Ellis had segregated

fee for counsel in settlement); Ryder's Case, 80 Mass. App. Ct. 

1102 (2011) (affirming denial of attorney's fees where Ellis's 

motion to recuse was denied and thereafter Ellis refused to 

submit evidence to support his claim for portion of fees

allocated in lump sum settlement); Derosiers's Case, 81 Mass. 

App. 1130 (2012) (sole issue is denial of attorney's fees); 

Stepien's Case, 81 Mass. App. Ct. 1132 (2012) (challenging 

reduction of attorney's fees that was done in accordance with 

statutory factors); Perry's Case, 82 Mass. App. Ct. 1102 (2012)

(arguing attorney's fees and costs due even though insurer made 

settlement offer upon receipt of impartial medical examiner's 

report but Ellis did not accept it until day before rescheduled 

§ 36 hearing). 

In addition, Ellis has filed a spate of appeals in which he 

refused insurers' offers of full payment in the apparent hopes 

of getting attorney's fees and then pursued the fee issue on 

appeal even when the insurer was ordered to pay only the amount 

offered. See, e.g., Packard's Case, 76 Mass. App. Ct. 1115 

(2010); Txicanji's Case, 76 Mass. App. Ct. 1123 (2010); Wong's 

Case, 76 Mass. App. Ct. 1126 (2010); Derosiers's Case, supra; 
4

been sanctioned for filing frivolous appeals and, similarly, for 

presenting frivolous claims involving fees and expenses before 

the department.

4,5

Against this backdrop, this appeal from a Superior Court 

judgment -- again rejecting Ellis's makeshift contentions 

 

Mahoney's Case (No. 1), 81 Mass. App. Ct. 1135 (2012); Perry's 

Case, supra.

4 See, e.g., Santelli's Case, 78 Mass. App. Ct. 1119 (2011) 

(Ellis sanctioned for filing baseless claim against another 

attorney in division of attorney's fee dispute between them); 

Neal's Case, 80 Mass. App. Ct. 1108 (2011) (affirming 

department's assessment of costs against Ellis for advancing 

frivolous claim where Ellis unreasonably refused offer of full 

payment because insurer would not send check directly to Ellis 

without authorization from employee); AIM Mut. Ins. Co. v. 

Okraska, 81 Mass. App. Ct. 1106 (2011) (frivolous appeal of 

denial of attorney's fees resulted in claimant Ellis being 

ordered to pay insurer's appellate attorney's fees); McCarty's 

Case, 81 Mass. App. Ct. 1114 (2012) (awarding double costs of 

appeal for frivolous appeal by Ellis where claims had already 

been adjudicated and were barred by res judicata); Vasilenko's 

Case, 83 Mass. App. Ct. 1124 (2013) (insurer's award of 

appellate attorney's fees taxed on Ellis where there could be no 

reasonable expectation of reversal on appeal).

5 In Ellis v. Travelers Indem. Co., 77 Mass. App. Ct. 1104 

(2010), a decision issued pursuant to our rule 1:28, we observed 

that a Superior Court judge noted twenty-seven cases filed in 

Superior Court in 2008 in which Ellis failed to exhaust his 

administrative remedies and brought actions in an effort to 

recover costs, demonstrating "a wilful design to circumvent the 

[department] primary jurisdiction, to procure payment for 

unsubstantiated expenses (which usually exceed the attorney's 

fee ordered), and to obtain begrudging capitalization from the 

insurers, who are apt to settle the vexatious cases rather than 

incur additional attorney's fees." We affirmed the judgment 

awarding the insurer attorney's fees and costs pursuant to G. L. 

c. 231, § 6F, and awarded appellate attorney's fees and costs. 

In addition, we referred the matter to the Board of Bar 

Overseers where disciplinary proceedings are now pending.
5

regarding "necessary expenses" -- presents yet another 

unsustainable effort by Ellis to manipulate the workers'

compensation system to Ellis's financial advantage vis-à-vis 

legal expenses. 

Ellis's contention that attorney's fees and expenses are 

nonreviewable -- even if unnecessary or unsubstantiated -- is 

contrary to best interests of injured employees, and is at odds 

to the very purposes served by the act. "It has long been 

recognized that the [a]ct 'was enacted as a "humanitarian 

measure" in response to strong public sentiment that the 

remedies afforded by actions of tort at common law did not 

provide adequate protection to workers.'" Spaniol's Case, 466 

Mass. 102, 106 (2013), quoting from Neff v. Commissioner of the 

Dept. of Industrial Accs., 421 Mass. 70, 73 (1995). 

We are mindful that legal representation of injured 

employees is an important part of the workers' compensation 

statutory and regulatory scheme, and that payment of attorney's

fees and expenses are specifically provided for at various 

stages of proceedings before the department and the courts.

6 

However, fees and expenses for appropriate legal representation 

is not a carte blanche to an open credit line for an attorney to 

draw upon without validity. Particularly is this so where, as 

 

6 As to the framework for review of a lump sum settlement 

and necessary attorney's fees and expenses, see part 2, infra.
6

here, the attorney-related expenses have not been shown to be 

reasonable or actually incurred. Indeed, in this case, Ellis 

failed to provide to the department and the lower court 

appropriate documentation for these expenses, certain of which 

were deemed unreasonable and excessive.7

Oversight of the allocation to an attorney of attorney's

fees and necessary expenses is an important part of the task of 

an administrative judge in approving a lump sum settlement 

agreement. Particularly is this so because the fees and 

expenses in a lump sum settlement differ in allocation from 

other, necessary fees and expenses awardable in other contexts,

which under the act may be payable to an attorney directly by 

the insurer. See G. L. c. 152, § 13A(1)-(7). In contrast, in a 

lump sum settlement agreement, attorney's fees and expenses are 

paid from the very lump sum settlement deemed due to the injured 

worker. It is illustrative to view the legal setting of a lump 

sum settlement arrangement. Once the insurer agrees to payment 

of a sum certain lump sum settlement, the insurer has little 

incentive to scrutinize the attorney's fees and expenses 

submitted by the employee's attorney. Further, the injured 

employee would be placed in an awkward position, if called upon 

 

7 Ellis does not contend on appeal that he submitted 

documentation sufficient to support the amount of "necessary 

expenses" allocated to him in the Michael X. Smith and Brian 

Tape settlements. The record is devoid of any such 

documentation.
7

to contest the fees and expenses of the attorney who has 

represented that employee through the settlement process. Thus, 

it is the impartial administrative judge who stands as the 

overseer to the fairness and propriety of the lump sum 

settlement and the fees and expenses incorporated therein. See 

G. L. c. 152, § 48. 

1. Procedural background. The appeal involves prior 

proceedings in two workers' compensation cases litigated during 

2008, in which Ellis represented employees seeking workers'

compensation for injuries sustained at work. 

The first case involves Michael X. Smith. Smith and the 

insurance company reached agreement as to a lump sum of $50,000 

after Smith had reached maximum medical improvement to 

compensate him for lingering effects of a tibia-fibula fracture, 

including persistent pain and limitation. The agreement 

provided for attorney's fees of $7,500, and expenses of 

$3,574.31. The agreement was submitted to an administrative 

judge for approval pursuant to G. L. c. 152, § 48. The

administrative judge approved the agreement but modified it by 

withholding payment of the expenses pending documentation, and 

ultimately approved only $1844.31 in expenses and awarded the 

balance of $1730 to the employee. The administrative judge 

denied expenses that were related to pursuing a psychological 

injury that was not part of the settlement. The record does not 
8

contain the documentation or other evidence provided to the 

administrative judge related to the expenses incurred.

The second case involves Brian Tape, who had injured his 

right ankle at work. The parties entered an agreement for a 

lump sum of $15,000 and future medical expenses, from which 

attorney's fees of $3,000 and expenses of $3,484.73 were to be 

paid. The administrative judge approved the settlement pursuant 

to § 48, but modified the expenses arrangement by releasing the 

full amount of the expenses to the employee to disburse "to his 

counsel as he deems appropriate." 

Of note in both cases, neither the injured employees nor 

the compensation insurers filed appeals concerning the lump sum 

settlement with the adjusted fees. "Once the department gives 

its approval of the parties' lump sum agreement pursuant to 

§ 48, 'further inquiry' of the merits of the controversy must be 

had in Superior Court." Opare's Case, 77 Mass. App. Ct. 539,

541 (2010), quoting from Perkins's Case, 278 Mass. 294, 299 

(1932).

Ellis did not seek any such "further inquiry" or direct 

appellate review in either case. Instead, acting solely on his 

own behalf and in his interests -- and without joining either 

the insurer or injured employee -- Ellis filed an independent 

declaratory judgment lawsuit in the Superior Court. 

Specifically, Ellis, acting in his own name and doing business 
9

as Ellis & Associates, commenced in the Superior Court a G. L. 

c. 231A declaratory judgment complaint coupled with a claim in 

equity to reach and apply against insurer's counsel. The 

declaration sought in the Superior Court -- tracking the 

position Ellis continues to advance in this appeal -- is that an

administrative judge is prohibited from considering attorney's

fees and expenses embedded in a lump sum settlement; and that 

under G. L. c. 152, § 19, the administrative judge's only 

recourse in the event that he finds that a lump sum agreement is 

not in the best interests of the employee is to reject the

settlement as a whole. 

A Superior Court judge rejected Ellis's contentions. The 

judge correctly reasoned -- a rationale which we adopt in this 

appeal -- that administrative judges "have the power to adjust 

Lump Sum Agreements in favor of claimants pursuant to their 

responsibility under G. L. c. 152, § 48[] to ensure that 

settlement is in the claimant's 'best interests,'"8 provided that

the administrative judge may neither increase the amount due 

from the insurer, nor reduce the amount due to the employee.

9

 

8 Ellis also argued that the department denied his property 

right to reimbursement for expenses without due process of law. 

Ellis does not pursue this dubious argument on appeal, and in 

any event, it is waived. 

9 At the outset there is also a patent flaw in Ellis being 

the sole plaintiff seeking such a declaratory judgment. General 

Laws c. 231A, § 8, inserted by St. 1945, c. 582, § 1, provides,
10

2. The framework for a lump sum settlement and 

administrative review. The act allows an employee and an 

employer or insurer to settle part or all of a claim for 

workers' compensation through a lump sum settlement, which, when 

presented to an administrative judge, as was done here, is not 

perfected "until and unless approved by an administrative judge 

or administrative law judge as being in the claimant's best 

interest." G. L. c. 152, § 48(1), as amended by St. 1991, 

c. 398, § 74. "Central to c. 152's statutory scheme is the 

Legislature's command that the department have oversight 

responsibility over lump sum settlements in order to ensure that 

any such settlement is 'in the claimant's best interest.'"

Opare's Case, 77 Mass. App. Ct. at 541, quoting from G. L. 

c. 152, § 48. "'The determination of a lump sum [settlement] 

calls for a careful scrutiny of the evidence, the exercise of 

sound judgment and good practical sense, so that the amount will 

be as near as possible to the present value of all the 

compensation payments which the employee would be entitled to 

receive in the future.' Paltsios's Case, 329 Mass. 526, 529 

(1952). The approval process under § 48 is designed to serve 

 

"When declaratory relief is sought, all persons shall be made 

parties who have or claim any interest which would be affected 

by the declaration, and no declaration shall prejudice the 

rights of persons not parties to the proceeding." 
11

that exacting inquiry." Opare's Case, 77 Mass. App. Ct. at 542 

n.6.

There is no provision in the act that the "necessary 

expenses" allocated to an employee's attorney as part of a lump 

sum settlement, once submitted to an administrative judge for 

approval, are exempt from this scrutiny. General Laws c. 152, 

§ 13A(8)(b), provides that once a lump sum settlement is 

reached, attorney's fees, which are to be paid from the

settlement, may not exceed twenty percent of the lump sum 

settlement. Twenty percent is an upper limit, not a lock box

that bars review into the box. While the act does not refer to 

costs, § 13A(10), inserted by St. 1991, c. 398, § 35, states

that the department "shall provide by rule the necessary 

expenses that are reimbursable under this section," and 

reasonably necessary expenses have traditionally been allowed. 

Pursuant to 452 Code Mass. Regs. § 1.19(2) (2013), any 

employee's attorney entitled to a fee under G. L. c. 152, § 13A,

shall submit to the administrative judge or reviewing board an 

itemization of reasonable and necessary expenses and 

disbursements, and the insurer shall pay those expenses approved 

by the administrative judge or reviewing board. See 452 Code 

Mass. Regs. § 1.02 (2008) (defining "necessary expenses").

In an alternative approach, Ellis advances an "all or 

nothing" proposal as follows. Ellis contends that, even if an 
12

administrative judge is authorized to review the "necessary 

expenses," § 19 of the act requires the administrative judge to 

reject the settlement as a whole, if the judge finds that the 

allocation for "necessary expenses" is not necessary, not 

supported, or excessive. We are aware of no authority to 

support this all-or-nothing approach. Furthermore, Ellis has 

not cited authority by caselaw or statute that suggests that an

employee's counsel is a "party" to a lump sum settlement 

agreement pursuant to § 48 and § 19 such that the reduction of 

the "necessary expenses" component of the lump sum settlement 

requires an administrative judge to reject the agreement as a 

whole. See Pinto v. Aberthaw Constr. Co., 418 Mass. 494, 497 

n.2 (1994) (attorneys signing third-party settlement agreement 

in capacities as counsel for insurer and employee not "parties" 

to settlement agreement). Section 19, applicable to agreements 

in general, is incorporated by reference into § 48. See 

Bertocchi's Case, 58 Mass. App. Ct. 561, 563-564 (2003). 

3. The thrust of Ellis's frivolous litigation. As 

previously noted, and as the host of Ellis's litigated cases 

compiled by citation in the beginning of this opinion show, this

appeal is just one small part of a pattern of Ellis's frivolous 

litigation in advancing legally unfounded claims on appeal.

"[W]e will not hesitate to award attorney's fees and costs 

against counsel in appropriate cases." Hough's Case, 82 Mass. 
13

App. Ct. 1121 (2012). See Donovan's Case, 81 Mass. App. Ct.

1108 (2012).10 In Donovan, we described the appeal as 

"meritless, redundant of the prior appeal, assaultive upon the 

integrity of the participants in the underlying administrative 

scheme, and wasteful of the private resources of the opposing 

party and of the public resources of the [department] and of the 

Appeals Court. It qualifies as thoroughly frivolous within the 

meaning of Mass.R.A.P. 25, as appearing in 376 Mass. 949 

(1979)." Ibid. 

Under this standard, this appeal is frivolous and worthy of 

sanctions. As with Ellis v. Travelers Indem. Co., 77 Mass. App. 

Ct. 1104 (2010), see note 3, supra, we refer this case to the 

Board of Bar Overseers. 

Judgment affirmed.

 

10 Although our rule 1:28 decisions are not precedent, they 

may be cited for their persuasive value. See Chace v. Curran, 

71 Mass. App. Ct. 258, 260 n.4 (2008). We cite the 1:28 

decisions here as part of the Ellis litigation history.