WILLIAM ADAMS vs. LIBERTY MUTUAL INSURANCE COMPANY.

LAURENCE, J. After providing chiropractic treatment in February,

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1992, to James Pittsley, an employee of Brake & Truck Supply, Inc., who had injured his right foot by dropping a brake shoe on it at work, Dr. William Adams sent the bill for his professional services [Note 1] to Liberty Mutual Insurance Company (Liberty), the employer's workers' compensation insurer, in April, 1992. Liberty refused to pay on the basis of claimed billing irregularities. [Note 2] Adams's subsequent effort, in December, 1992, to collect his relatively modest fee by filing a third-party claim against Liberty with the office of claims administration within the Department of Industrial Accidents (DIA) [Note 3] produced nightmarish consequences for him.

Liberty resisted the claim and asserted a charge of fraudulent billing against Adams, [Note 4] purportedly under G. L. c. 152,

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§ 14(2). [Note 5] After hearings, an administrative judge (AJ) of

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the DIA to whom Adams's claim had been assigned rendered a final decision on September 20, 1993, distinctly adverse to Adams. The AJ dismissed Adams's claim for payment upon determination that Liberty had paid the medical expenses associated with the injury to the employee's foot; that the employee had never received treatment from Adams for a work-related back injury; that Adams's proffered "computer glitch" explanation for the altered treatment records was not credible; and that "the alteration of these documents [was] . . . outrageous, egregious, and the basis of an attempt to defraud [Liberty]."

Invoking the provisions of G. L. c. 152, § 14(2), the AJ ordered Adams to pay Liberty's costs and attorney's fees in the sum of $3,500.00 and assessed a penalty of $3,259.80 against Adams (an amount equal to six times the then-average weekly wage in the Commonwealth, see note 5, supra). [Note 6] He also forwarded a copy of his decision to the insurance fraud bureau (IFB) [Note 7] and to the Board of Registration of Chiropractors (board of registration), purportedly but erroneously "as required by Section 14(2)." [Note 8]

At least six months before the AJ "determined" under G. L.

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c. 152, § 14(2), that Adams had knowingly made a false statement, Liberty had decided to act on its own initiative by complaining of Adams's alleged fraud to the IFB and requesting an investigation into his supposed "false billing." After considering the evidence against Adams provided by Liberty and conducting its own independent investigation of the claim, the IFB determined, in January, 1995, that there was insufficient evidence of criminal conduct to warrant further action against Adams. Despite keeping the file open for the receipt of any additional information bearing on Liberty's accusations against Adams and notwithstanding the AJ's final decision against Adams, the IFB did not thereafter pursue further investigation of Liberty's claim of Adams's supposed fraud.

The outcome of the AJ's referral of his decision to the board of registration was far less fortunate for Adams. On the basis of the administrative record and opposing memoranda, and without a hearing, the board of registration on September 11, 1996, ordered the revocation of Adams's license to practice as a chiropractor. The board of registration stated that, in light of Adams's "deceit and gross misconduct" in connection with the "fraudulent" billings to Liberty, it could "conceive of no circumstances under which [Adams's] license to practice chiropractic should be reinstated." [Note 9]

Shortly before the board of registration's severe sanction, in May, 1996, Adams's administrative appeal had been rebuffed by the DIA reviewing board (reviewing board), which affirmed the AJ's decision, accepted Liberty's representation that it had paid the initial $540.85 bill for treatment to the employee's right foot, and explicitly upheld the AJ's finding, based on Liberty's contentions and evidence, that Adams had "falsely

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altered" his billing "to induce the insurer to pay additional monies."

Adams appealed the reviewing board's decision to this court pursuant to G. L. c. 152, § 12(2). While that appeal was pending, Liberty, in June, 1996, commenced its own action -- incautiously, as events proved -- in Suffolk Superior Court, pursuant to G. L. c. 152, § 12(1), seeking enforcement of the reviewing board's decision with respect to the costs, fees, and penalties Adams had been ordered by the AJ to pay under G. L. c. 152, § 14(2). In its complaint, Liberty reiterated its charge of Adams's "fraud" in filing his claim for payment. Pursuant to Mass.R.Civ.P. 36, 365 Mass. 795 (1974), Adams filed requests for admissions upon Liberty in that action. Surprisingly, he obtained an unqualified admission from Liberty that it had never in fact made any payments to him for any treatment provided to the employee, Pittsley. (Liberty nonetheless denied, in defiance of the facts in the administrative record, that it had failed to disclose to the AJ or reviewing board its failure to pay Adams.)

On the basis of this newly discovered evidence, Adams obtained leave from this court in July, 1997, to move to reopen the decision of the reviewing board. [Note 10] That same month the reviewing board allowed his motion to reopen the proceedings on his original claim and remanded the matter to the AJ "for such further action or findings as he deems appropriate."

Prior to hearings before the AJ in the reopened case, Adams moved to add a claim against Liberty under G. L. c. 152, § 14(2), on the ground that Liberty had knowingly committed fraud by failing to disclose its lack of payment and otherwise misrepresenting the facts in raising the defense charge of fraud against Adams. [Note 11] The AJ refused to allow the claim to be joined and proceeded to conduct hearings on Adams's original claim into mid-1998, at which Liberty continued to charge

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fraudulent behavior on Adams's part. On June 26, 1998, the AJ finally determined that, "in consideration of the new evidence introduced in the instant hearing specifically that . . . the original bill was never paid, and that the insurer was never actually billed for services relating to the employee's back, I find insufficient evidence to conclude that the third party claimant [Adams] . . . engaged in conduct consistent with [common law or] criminal fraud or an activity that violated the terms of § 14(2)." [Note 12]

The AJ thereupon denied and dismissed Liberty's G. L. c. 152, § 14(2), fraud charge against Adams and ordered that all findings and orders in his original September, 1993, decision against Adams be vacated. Liberty appealed, continuing to contend that Adams had committed fraud, but the reviewing board in October, 1999, affirmed the AJ's new decision in Adams's favor. In the wake of these new developments, Adams and the board of registration entered into a stipulation before the Supreme Judicial Court in November, 2000, which vacated the board of registration's revocation of Adams's license to practice chiropractic medicine, reinstated that license (retroactive to the date it was revoked), and dismissed, with prejudice, Adams's pending appeal of the revocation.

Adams's seven-year ordeal had not inclined him to let bygones be bygones. He commenced the underlying action against Liberty in Superior Court in July, 2001, asserting counts for malicious prosecution and violations of G. L. c. 93A and G. L. c. 176D. He based his claims on Liberty's misrepresentations made over the years 1993-1999, including its false statements regarding Adams's bills and Liberty's supposed payment; its unilateral false complaint of insurance fraud to the IFB; its reiteration of fraud charges against Adams even after the IFB

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had found insufficient evidence and even after Liberty admitted never having paid Adams; its failure to disclose to the board of registration either its failure ever to have paid Adams or the AJ's dismissal of its factually erroneous fraud charges against Adams; and its continued allegations of Adams's fraud in its appeal of the AJ's decision exonerating Adams. Adams claimed that as a proximate result of Liberty's conduct, he had sustained physical and emotional pain and suffering, lost valuable property rights in the form of his license to practice chiropractic medicine and the six years of income he would have derived from it, and suffered serious damage to his reputation and standing in the medical community. He sought recovery of over $143,000 in attorney's fees and costs and $2,600,000 in lost income, to be trebled on account of Liberty's intentional misconduct and alleged failure to respond in a timely fashion to his G. L. c. 93A demand letter. [Note 13]

Liberty did respond promptly to Adams's complaint by moving, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), to dismiss it on two grounds: first, that § 24 of G. L. c. 152, the Workers' Compensation Act, provided the exclusive remedy for allegations of misconduct by an insurer in the handling of workers' compensation claims; and second, that Adams had failed to exhaust his administrative remedies before the DIA (namely, by pursuing to conclusion the G. L. c. 152, § 14[2], fraud charges he had attempted to raise against Liberty in the reopened DIA proceedings). Treating Liberty's motion as one for summary judgment, a judge of the Superior Court allowed the motion and dismissed Adams's complaint, adopting by reference the two grounds advanced by Liberty without separate analysis.

We conclude that the judge erred. General Laws c. 152, § 24,

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does not bar Adams's common law and G. L. c. 93A claims, and the doctrine of exhaustion of administrative remedies is inapplicable to his complaint. [Note 14]

Exclusivity. Liberty's exclusivity argument finds no support in the language of G. L. c. 152, § 24, as amended through St. 1991, c. 398, § 43, which provides in relevant part that:

"An employee shall be held to have waived his right of action at common law . . . to recover damages for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right . . . . If an employee has not given notice to his employer that he preserves his right of action at common law . . . the employee's spouse, children, parents and any other member of the employee's family or next of kin who is wholly or partly dependent upon the earnings of such employee at the time of injury or death, shall also be held to have waived any right created by statute, at common law or under the law of any other

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jurisdiction against such employer . . ." (emphasis added). [Note 15]

This is crystal-clear statutory language. It unambiguously limits the persons who are held to have waived common-law and statutory rights to particular classes of an employee's family members and relatives. A third-party medical provider such as Adams is conspicuously not among those persons carefully identified as subject to G. L. c. 152, § 24, waiver.

We are constrained to follow and apply the literal (and entirely rational) command of such plain and unambiguous language. See White v. Boston, 428 Mass. 250, 253 (1998). Massachusetts appellate courts have consistently construed G. L. c. 152, § 24, narrowly, so as not to extend its exclusivity bar to the claims of anyone whom the Legislature has not seen fit explicitly to include therein. See King v. Viscoloid Co., 219 Mass. 420, 423, 425 (1914); Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 523-525 (1980); Corrigan v. General Elec. Co., 406 Mass. 478, 480 (1990); Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1005-1006 (1991).

Liberty's argument for imposing the bar of exclusivity on persons not mentioned in G. L. c. 152, § 24, because their claims in some way relate to or arise out of an insurer's handling of employee claims in the workers' compensation system is unsupported by any relevant authority and contrary to uniform precedent under § 24. It is also inconsistent with the ancient principle that common-law rights of action are not to be deemed taken away by a statute except by its explicit direction or by necessary implication. See King v. Viscoloid Co., 219 Mass. at 425, and cases cited. The Supreme Judicial Court's rationale in Ferriter v. Daniel O'Connell's Sons, Inc., remains applicable and mandates our rejection of Liberty's (and the motion judge's) erroneous construction of § 24: "The Legislature have stated the consequence that is to follow the failure [of an employee] to give the statutory notice [preserving common-law rights of action];

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how can the court say that further consequences shall follow, by taking away the right of a third person not mentioned in [§ 24]?" [Note 16] 381 Mass. at 521, quoting from King v. Viscoloid Co., supra at 423.

The Legislature, aware of the appellate courts' narrow construction of G. L. c. 152, § 24, see generally Condon v. Haitsma, 325 Mass. 371, 373 (1950), carefully crafted amendments to § 24 after Ferriter that expanded the class of individuals subject to the exclusivity provision but only in the precise and limited manner that appears in the present statute. The Legislature's explicit restraint in that regard also demonstrates that it has not intended radical expansion of the scope of § 24 to include medical providers or any others not specifically mentioned therein merely because their claims in some way relate to those of injured employees. See King v. Viscoloid Co., 219 Mass. at 425; Cousineau v. Laramee, 388 Mass. 859, 862 (1983); General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999); Triplett v. Oxford, 439 Mass. 720, 726-727 (2003). [Note 17]

Accordingly, the dismissal of Adams's complaint on the

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ground that it was barred by G. L. c. 152, § 24, was premised on an erroneous view of the law and must be reversed.

Exhaustion. Liberty's (and the judge's) reliance on the notion that Adams had to exhaust his administrative remedies by pursuing his G. L. c. 152, § 14(2), charge against Liberty is also erroneous, for three interconnected reasons.

First, G. L. c. 152, § 14(2), explicitly confers concurrent original jurisdiction over fraud claims on the Superior Court as well as the DIA, a circumstance that makes the doctrine of exhaustion inapplicable. That doctrine is one governing the timing of judicial review of administrative action, which comes into play only for "the determination of questions which the Legislature has left in the first instance to the [relevant agency]" (emphasis added). Saint Luke's Hosp. v. Labor Relations Commn., 320 Mass. 467, 470 (1946). Further, it operates only "[i]n the absence of a statutory directive to the contrary." East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 448 (1973), quoting from Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587 (1972). The provision for concurrent jurisdiction in § 14(2) is just such a statutory directive. See Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. 341, 346-347, 350-351 (1987) (no need for prior resort to agency when courts are invested with concurrent jurisdiction).

Second, as acknowledged by the AJ in his final decision exonerating Adams, G. L. c. 152, § 14(2), covers only fraudulent conduct committed "in any proceeding within the division of dispute resolution" (see note 5, supra), while Liberty's misrepresentations complained of by Adams as having caused his damages occurred outside of that division -- in the IFB, the board of registration, the reviewing board, and the courts. See Murphy's Case, 53 Mass. App. Ct. 708, 713 (2002)

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("Section 14[2] is explicit in its reference to 'proceeding[s] within the division of dispute resolution.' . . . If the Legislature had wished to embrace within the punitive measures of § 14[2] [other actions] . . . it could have so provided. Instead, it chose to limit the scope of § 14[2]").

Finally, G. L. c. 152, § 14(2), expressly restricts the DIA's jurisdiction to consider fraud actions to those "brought by an employee or [an] insurer," and therefore does not encompass -- much less supersede -- actions by other unspecified persons, including third-party health care providers. [Note 18]

Even were G. L. c. 152, § 14(2) (see note 5, supra), applicable to Adams's action and the doctrine of exhaustion legally relevant to his situation, it would be inapplicable here under the well-settled "futility" exception. In this case, the "agency cannot afford [the] relief" sought, Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 84 (1968), and resort to the DIA would be futile, because the administrative remedy that it could offer would be grossly inadequate. See cases cited in Cella, Administrative Law and Practice § 1723 & n.7 (1986 & Supp. 2002). Under § 14(2), the only monetary sanction for fraud is assessment of the costs of the DIA proceedings, associated attorney's fees, and a penalty amounting to, at most, a few thousand dollars. See note 5, supra. The DIA has no authority to compensate Adams for the claimed damage to his reputation, emotional pain and suffering, or multimillion dollar loss of professional income, or to impose the punitive remedy of multiple damages under G. L. c. 93A. The administrative remedy is self-evidently inadequate.

Moreover, there would be no jurisprudential purpose served by requiring Adams to resort to the DIA before going to court on his claims of fraud, misrepresentation, and unfair and deceptive

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practices by Liberty. "The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert [administrative] body is not likely to be helpful in the application of these standards to the facts of this case." Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 305-306 (1976).

In like fashion, when relatively conventional business and litigation conduct, such as Adams here complained of, is attacked under G. L. c. 93A as unfair and deceptive, when the agency has no authority to award c. 93A relief, and when there are essentially no disputed material facts, there is no occasion to require a litigant first to press its claims before the agency. This is particularly so when, as here, the transactions at issue are not complicated, do not involve any core workers' compensation principles, and call for no technical discretion or competence. See Leahy v. Local 1526, Am. Fedn. of State, County, & Mun. Employees, 399 Mass. at 349-350; Columbia Chiropractic Group, Inc. v. Trust Ins. Co., 430 Mass. 60, 62-63 (1999). [Note 19]

Similarly, an action for malicious prosecution is a common-law proceeding with which our courts have long-standing familiarity, since well before the creation of any administrative agencies. It focuses on "the right to be free from unjustifiable litigation," Carroll v. Gillespie, 14 Mass. App. Ct. 12, 18 (1982), quoting from Foley v. Polaroid Corp., 381 Mass. 545, 552 (1980), and on traditional tort issues of reasonableness, probable cause, and malice -- all concepts that courts have

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regularly dealt with and determined for generations and that require for their analysis and resolution no specialized knowledge or administrative expertise. [Note 20]

Disposition. Because Adams's claims were not subject to the exclusive remedy provision of the Workers' Compensation Act and did not have to be prosecuted to exhaustion at the DIA, they were properly before the court. Accordingly, we reverse the judgment entered in favor of Liberty and remand the matter to the Superior Court for further proceedings consistent with this opinion.

So ordered.