Timothy Koback v. Municipal Employees' Retirement System of Rhode Island

June 24, 2021

Supreme Court

No. 2019-423-M.P.
(16-7082)

Timothy Koback :

v. :

Municipal Employees’ Retirement
System of Rhode Island. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone
(401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that corrections may
be made before the opinion is published.
 Supreme Court

No. 2019-423-M.P.
(16-7082)

Timothy Koback :

v. :

Municipal Employees’ Retirement
System of Rhode Island. :

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Lynch Prata, for the Court. The respondent, Municipal Employees’

Retirement System of Rhode Island (MERS),1 seeks review of a decree of the

Appellate Division of the Workers’ Compensation Court (WCC), awarding

attorneys’ fees and costs to the petitioner, Timothy Koback. The respondent claims

the WCC and its Appellate Division lack the statutory authority to award attorneys’

fees and costs. The respondent also maintains that even if attorneys’ fees are proper,

the petitioner did not submit legally sufficient evidence to support such fees under

1
The matter as filed with the Workers’ Compensation Court incorrectly captioned
the case and named the respondent “Employees’ Retirement System of Rhode
Island.” The correct name of the respondent is the Municipal Employees’
Retirement System of Rhode Island or MERS. Consequently, we have utilized the
correct name of the respondent throughout this opinion, and have properly captioned
the case in this Court.
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our precedent. For the reasons set forth in this opinion, we quash the decree of the

Appellate Division of the WCC.

Facts and Travel

The underlying facts of this case are not in dispute. The petitioner was

employed as a firefighter by the City of Woonsocket. On March 24, 2012, during

the performance of his duties as a firefighter, he sustained a herniated disc injury to

his lower back while assisting in a patient transfer. The petitioner filed his

application for accidental disability retirement (ADR) benefits with the respondent

retirement board on September 19, 2013. As mandated by G.L. 1956 § 45-21.2-9(a),

he was examined by three physicians engaged by the retirement board to assist the

board in rendering a decision on petitioner’s ADR application.

On November 10, 2015, the retirement board denied petitioner’s ADR

application, finding that petitioner had failed to prove that his injury arose out of and

in the course of his duties as a firefighter. The retirement board instead approved

petitioner’s application for ordinary disability retirement. The petitioner requested

reconsideration of the decision; and in a letter dated November 18, 2016, the

retirement board affirmed its decision to deny petitioner’s ADR application.

The petitioner then appealed the retirement board’s adverse ruling to the

WCC. In accordance with the WCC’s rules, practices, and procedures, the matter

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was assigned to a trial judge. On May 23, 2017, the trial judge issued a pretrial order

denying the petition, from which petitioner filed a timely claim for a trial de novo.

After a full trial, the trial judge issued a written decision granting petitioner’s

petition seeking ADR benefits and awarding a counsel fee to petitioner’s counsel.

In support of his application for attorneys’ fees, petitioner’s counsel submitted a fee

affidavit, detailing the work his office performed and the hours spent on the case,

along with a list of fees and costs incurred, for a total bill of $10,442.02. The

respondent objected, arguing that the WCC lacked statutory aut hority to award

attorneys’ fees. The petitioner’s counsel later submitted a supplemental affidavit,

attesting to his credentials and the difficulty of the case, and filed an affidavit billing

an additional $2,790 for work performed after the WCC rendered its decision. A

hearing was held before the WCC. The trial judge determined that the WCC had

statutory authority to award attorneys’ fees and concluded that a fee in the amount

of $12,000 was fair and reasonable in this case. A decree was entered ordering that

petitioner was to be paid ADR benefits and that his attorney be paid a fee of $12,000,

plus costs of $418.27.

The respondent then filed an appeal to the Appellate Division, challenging

only the award of attorneys’ fees and costs to petitioner’s counsel, and contesting

the WCC’s authority to award attorneys’ fees and costs in ADR claims.

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 In its decision, the Appellate Division rejected respondent’s arguments,

finding that the WCC had statutory authority to award fees and costs in ADR cases.

The Appellate Division reasoned that appeals in such cases may be considered

“proceedings” and the notice of appeal to the WCC may be considered a petition,

within the meaning of G.L. 1956 § 28-35-32.2 According to the decision, a contrary

ruling would “elevate form over substance.” The Appellate Division determined

that petitioner, as a firefighter who filed a claim for ADR benefits, was an

“employee” as that term is defined in G.L. 1956 § 28-29-2(4). The court also

determined that ADR benefits are a form of compensation within the meaning of

§ 28-35-32.

The Appellate Division then considered respondent’s argument that the

affidavits submitted by petitioner’s attorney were insufficient to support an award of

2
General Laws 1956 § 28-35-32, titled “Costs—Counsel and witness fees[,]”
requires an award of attorneys’ fees in most workers’ compensation cases. That
provision is the primary focus of this case, and provides, in pertinent part:

“In proceedings under this chapter, and in proceedings
under chapter 37 of this title, costs shall be awarded,
including counsel fees and fees for medical and other
expert witnesses, including interpreters, to employees who
successfully prosecute petitions for compensation;
petitions for medical expenses; petitions to amend a
preliminary order or memorandum of agreement; and all
other employee petitions, except petitions for lump-sum
commutation * * * .”

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attorneys’ fees. The decision observed that the affidavits were never “formally

introduced as exhibits for the court to review.” Thus, the Appellate Division

reasoned, there was no need for a disinterested attorney to vouch for the

reasonableness and necessity of fees contained in a fee affidavit. Despite the absence

of a formally introduced affidavit, the Appellate Division upheld the fee awarded by

the trial judge and imposed an additional fee of $2,500 for counsel’s work before the

Appellate Division. A final decree was entered on October 22, 2019, and respondent

filed a timely petition for writ of certiorari with this Court. We granted the petition

on November 18, 2019, and the writ of certiorari issued on that same day.

Standard of Review

This Court’s “review of a case on certiorari is limited to an examination of the

record to determine if an error of law has been committed.” Lang v. Municipal

Employees’ Retirement System of Rhode Island, 222 A.3d 912, 914-15 (R.I. 2019)

(quoting Plante v. Stack, 109 A.3d 846, 853 (R.I. 2015)). The Court will “examin[e]

the record for judicial error * * * [and] inspect the record to discern if there is any

legally competent evidence to support the findings of the hearing justice below.” Id.

at 915 (quoting Plante, 109 A.3d at 853).

Additionally, § 28-35-30 sets forth the grounds upon which this Court may

review a decision of the Appellate Division. The statute states in part that

“[u]pon petition for certiorari, the [S]upreme [C]ourt may
affirm, set aside, or modify any decree of the appellate
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 commission of the workers’ compensation court only upon
the following grounds:

“(1) That the workers’ compensation court acted without
or in excess of its authority;

“(2) That the order, decree, or award was procured by
fraud; or

“(3) That the appellate division erred on questions of law
or equity, the petitioner first having had his objections
noted to any adverse rulings made during the progress of
the hearing at the time the rulings were made, if made in
open hearing and not otherwise of record.” Section
28-35-30(a).

Furthermore, we review questions of statutory interpretation de novo. Lang,

222 A.3d at 915. “In so doing, [the Court’s] ultimate goal is to give effect to the

purpose of the act as intended by the Legislature.” Id. (quoting Bluedog Capital

Partners, LLC v. Murphy, 206 A.3d 694, 699 (R.I. 2019)). If the statute is clear and

unambiguous, the Court will “interpret the statute literally and * * * give the words

of the statute their plain and ordinary meanings.” Id. (quoting In re B.H., 194 A.3d

260, 264 (R.I. 2018)). “The Legislature is presumed to have intended each word or

provision of a statute to express a significant meaning, and the Court will give effect

to every word, clause, or sentence, whenever possible.” Id. (quoting In re B.H., 194

A.3d at 264). However, “this Court will not construe a statute to reach an absurd

result.” Id. (quoting In re B.H., 194 A.3d at 264).

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 Finally, we note that this Court has “staunchly adhered to the ‘American rule’

that requires each litigant to pay its own attorney’s fees absent statutory authority or

contractual liability.” Tri-Town Construction Company, Inc. v. Commerce Park

Associates 12, LLC, 139 A.3d 467, 478 (R.I. 2016) (brackets omitted) (quoting Shine

v. Moreau, 119 A.3d 1, 8 (R.I. 2015)). We have also concluded that “when a rule is

silent regarding attorneys’ fees, there is ‘no room for implication by judicial

construction’ and attorneys’ fees are not available under the statute.” Shine, 119

A.3d at 10 (quoting Eleazer v. Ted Reed Thermal, Inc., 576 A.2d 1217, 1221 (R.I.

1990)).

Discussion

On certiorari, respondent raises three arguments. The respondent first claims

that the WCC and its Appellate Division lack the authority to award attorneys’ fees

and costs following an appeal from a decision of the retirement board pursuant to

§ 45-21.2-9(f). Second, respondent contends that § 28-35-32, the attorneys’ fees

provision of the Workers’ Compensation Act, chapters 29 through 37 of title 28 of

the general laws (WCA), does not provide for an award of attorneys’ fees in this case

because petitioner’s claim does not fall into one of the statutorily authorized

categories allowing for an award of fees or costs. Third, respondent maintains that,

assuming arguendo that attorneys’ fees are proper, petitioner did not submit legally

sufficient evidence to support such fees under this Court’s precedent.

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 Statutory Authority to Award Attorneys’ Fees

Because this Court is tasked with determining the interplay between several

statutory provisions to resolve this case, we think it is necessary to provide a brief

review of those statutes and the legislative history regarding the WCC’s jurisdiction

to hear ADR claims.

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 G.L. 1956 § 42-35-15 of the Administrative Procedures

Act (APA). However, in 2011, the General Assembly changed the forum for

litigants and granted jurisdiction to the WCC to hear ADR claims filed by certain

parties aggrieved by a determination made by the retirement board for injuries

occurring after July 1, 2011. 3 See P.L. 2011, ch. 151, art. 12, § 8 (effective June 29,

2011); see also § 45-21.2-9. In granting such authority to the WCC, the General

Assembly made numerous other changes to the ADR and workers’ compensation

statutes.4

3
It is undisputed that petitioner was within his right to appeal to the WCC as a party
“aggrieved by the determination” of the retirement board. See G.L. 1956
§ 45-21.2-9(f).
4
This Court is mindful that there were further legislative changes to § 45-21.2-9 in
both 2013 and 2017. However, those amendments are not applicable to petitioner’s
claim because his injury occurred in 2012.
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 For example, § 45-21.2-9, which provides for ADR benefits, was amended in

2011 by adding six new sections, as follows:

“(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
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 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 member’s
compensation at the date of the member’s retirement,
subject to the provisions of § 45-21-31.” Section 45-21.2-9
(as amended by P.L. 2011, ch. 151, art. 12, § 8 (effective
June 29, 2011)).

In addition to amending § 45-21.2-9, the General Assembly also amended

eight specific sections of the WCA, namely §§ 28-29-2(4), 28-29-2(5), and

28-29-26; G.L. 1956 §§ 28-30-1 and 28-30-13; §§ 28-35-11 and 28-35-27; and G.L.

1956 § 28-36-5.4. See P.L. 2011, ch. 151, art. 12, § 8.

Further, § 45-21.2-9(h) and (i), quoted supra, make reference to § 28-35-20,

which states in pertinent part:

“(c) At the pretrial conference, the judge shall make every
effort to resolve any controversies or to plan for any
subsequent trial of the case. * * * Subject to the provisions
of § 45-21.2-9(j), the pretrial order shall be effective upon
entry. Any payments ordered by it including, but not
limited to, weekly benefits, medical expenses, costs, and
attorney’s fees, shall be paid within fourteen (14) days of
the entry of the order.” Section 28-35-20.

In comparing the previous avenue of relief afforded to aggrieved parties in

disputes concerning an appeal of ADR benefits available in the Superior Court

through the APA to the present avenue of relief offered in the WCC, it is clear that

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the General Assembly intended to provide a more expansive forum within which

claims for ADR benefits are decided and adjudicated. Litigants are now provided

with a de novo review of the retirement board’s decision, which allows the parties

to utilize all of the practices and procedures of the WCC. This includes allowing the

parties access to the internal workers’ compensation court procedures consisting of

a pretrial conference as set out supra in § 28-35-20(c), an initial hearing, and a full

trial on the merits.

However, nowhere in § 45-21.2-9 is there specific authority for the WCC to

award attorneys’ fees and costs to those aggrieved applicants for ADR benefits

whose claims are successful. See Lang, 222 A.3d at 915 (concluding that this Court’s

“ultimate goal is to give effect to the purpose of the act as intended by the

Legislature”) (quoting Bluedog Capital Partners, LLC, 206 A.3d at 699). Indeed,

the language of § 45-21.2-9 does not include the terms “attorneys’ fees” or “costs.”

The APA—specifically § 42-35-15—which governs all other appeals of decisions

of the retirement board, also does not provide for awards of counsel fees or costs to

successful appellants.

As stated supra, § 45-21.2-9(f) and subsequent subsections were established

to afford an aggrieved applicant with the ability to take an appeal from a decision of

the retirement board to the WCC for a de novo review, utilizing the “case

management procedures and dispute resolution processes” afforded by the WCA.

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Section 42-21.2-9(j). Section 45-21.2-9(h) further describes the procedure for

pursuing an appeal in the WCC and states that, following the filing of the notice of

appeal, “the order of the retirement board shall be stayed pending further action by

the court pursuant to the provisions of § 28-35-20.”

The next subsection, § 45-21.2-9(i), additionally provides that, upon receipt

of the notice of appeal, the WCC shall assign the matter to a judge and issue notice

of that assignment as well as “the date for pretrial conference in accordance with

§ 28-35-20.” As such, the statute expressly invokes and affords aggrieved applicants

with the hearing structure provided for in § 28-35-20, consisting of a pretrial

conference, the issuance of a pretrial order, and the right to claim a trial. See

§ 28-35-20.

However, invocation of the pretrial-hearing process provided for in

§ 28-35-20 does not confer upon the WCC the statutory authority to award attorneys’

fees and costs. The statute merely affords the applicant the ability to be heard in

proceedings available to the applicant in the WCC.

Section 28-35-20(c) provides that, at the close of a pretrial conference, the

judge must issue a pretrial order granting or denying, in whole or in part, the relief

sought. That section further provides that payments ordered by the court are payable

within fourteen days, including but not limited to “weekly benefits, medical

expenses, costs, and attorneys’ fees[.]” Section 28-35-20(c). Based on this language,

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the Appellate Division concluded that attorneys’ fees can be awarded to an applicant

for ADR benefits on appeal from the retirement board.

However, nothing in § 28-35-20 or § 45-21.2-9 expressly empowers the WCC

to award fees and costs. Rather than making an award of “weekly benefits, medical

expenses, costs, and attorneys’ fees” available, § 28-35-20 merely reflects that a

pretrial order may encompass such items where they are otherwise made available

by law.

If the WCC was independently authorized to award attorneys’ fees and costs

by virtue of reference to § 28-35-20, then the court would also be authorized to award

the other categories of relief referenced, including medical expenses. However, it is

clear that an application for an ADR pension does not include a potential award of

medical expenses. See § 45-21.2-9(k) (stating that when a member qualifies for

ADR, “the member shall receive a retirement allowance equal to sixty-six and

two-thirds percent (66 2/3%) of the rate of the member’s compensation”). Just as

medical expenses are not awardable in proceedings before the WCC in appeals from

the retirement board merely by virtue of reference to § 28-35-20, neither are

attorneys’ fees or costs. See Matter of Falstaff Brewing Corp. Re: Narragansett

Brewery Fire, 637 A.2d 1047, 1050 (R.I. 1994) (holding that, in construing a statute,

the Court must “attribute to the enactment the meaning most consistent with its

policies and with the obvious purposes of the Legislature”). Accordingly, the

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required strict construction of § 45-21.2-9 and its reference to § 28-35-20 leads us

to the inescapable conclusion that § 45-21.2-9 unambiguously fails to provide for

the award of attorneys’ fees. See Shine, 119 A.3d at 10 (concluding that “our

precedent indicates that a statute must explicitly include attorneys’ fees in order for

a court to award attorneys’ fees pursuant to that statute”).

The petitioner argues that Lang, cited supra, provides binding authority that

attorneys’ fees are to be awarded in successful ADR benefits cases. In Lang, this

Court considered whether the WCC had subject-matter jurisdiction over an appeal

filed by a firefighter after the retirement board denied his application for ADR

benefits based on occupational cancer. Lang, 222 A.3d at 914, 916. In that case, Mr.

Lang applied for ADR benefits in accordance with § 45-21.2-9. Id. at 914. After his

application was denied, he appealed to the WCC, which reversed the retirement

board’s decision and ruled that G.L. 1956 § 45-19.1-1 created a conclusive

presumption that cancer in firefighters arises out of and in the course of their

employment. Id. The Appellate Division affirmed that decision, and MERS sought

review to this Court, arguing that the WCC did not have subject-matter jurisdiction

over Mr. Lang’s appeal from the retirement board.5 Id. at 916.

5
MERS also raised the issue that G.L. 1956 § 45-19.1-1 did not create a conclusive
presumption that Mr. Lang’s cancer was an occupational disease. Lang v. Municipal
Employees’ Retirement System of Rhode Island, 222 A.3d 912, 918 (R.I. 2019).
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 We observed in Lang that the Legislature used broad language in

§ 45-21.2-9(j), and we concluded that “all proceedings are subject to chapters 29–38

of title 28, and the statute contains no limiting language.” Id. at 918. We opined that,

if the Legislature had intended to limit the WCC’s authority to procedural issues

only, it could have provided that proceedings filed in accordance with § 45-21.2-9(j)

were subject only to the procedural provisions contained in chapter 35 of title 28. Id.

Although we concluded in Lang that there was subject-matter jurisdiction

over Mr. Lang’s claim, we nowhere concluded that § 45-21.2-9 gave statutory

authority to award attorneys’ fees or costs. The fact that the WCC has jurisdiction

over ADR appeals does not mean that it has the authority to award attorneys’ fees.

Thus, petitioner’s contention is of no moment, and we need not be concerned about

our holding in Lang being applicable to the award of attorneys’ fees in ADR claims.

Again, our Court’s “staunch[] adhere[nce] to the ‘American rule’ that requires

each litigant to pay its own attorney’s fees” requires that there be explicit statutory

authority for the award of attorneys’ fees. Tri-Town Construction Company, Inc.,

139 A.3d at 478. The General Assembly’s deliberate silence and the absence of any

explicit authority concerning the award of counsel fees and costs in § 45-21.2-9 is

significant. See Rivera v. Employees’ Retirement System of Rhode Island, 70 A.3d

905, 910 (R.I. 2013) (“[W]e are not privileged to legislate, by inclusion, words which

- 15 -
are not found in the statute.”) (quoting Wayne Distributing Co. v. Rhode Island

Commission for Human Rights, 673 A.2d 457, 460 (R.I. 1996)).

Thus, it is clear to us that the General Assembly has not conveyed specific

statutory authority upon the WCC to award attorneys’ fees and costs in successful

ADR appeal claims. See Eleazer, 576 A.2d at 1221 (concluding that “the right to

collect attorney’s fees did not exist at common law and that * * * consequently such

fees may be taxed only when there is either specific statutory authority or contractual

liability”). We therefore conclude that the Appellate Division of the WCC acted in

excess of its statutory authority in concluding that § 45-21.2-9 conferred authority

to award attorneys’ fees in this case.

Other Issues

In light of our holding in this case, we need not, and shall not, reach the other

issues raised by the respondent.

Conclusion

For the reasons set forth in this opinion, we quash the decree of the Appellate

Division of the WCC. The record may be returned to the WCC with our decision

endorsed therein.

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 STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903

OPINION COVER SHEET

Timothy Koback v. Municipal Employees' Retirement
Title of Case
System of Rhode Island.
No. 2019-423-M.P.
Case Number
(16-7082)

Date Opinion Filed June 24, 2021

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.

Written By Associate Justice Erin Lynch Prata

Appellate Division of the Workers' Compensation
Source of Appeal
Court
Associate Judge Debra L. Olsson
Judicial Officer from Lower Court Associate Judge Robert E. Hardman
Associate Judge Alfredo T. Conte
For Petitioner:

John M. Harnett, Esq.
Attorney(s) on Appeal
For Respondent:

Michael P. Robinson, Esq.

SU-CMS-02A (revised June 2020)