Opinion
BOARD Nos. 009812-95, 052754-89
Filed: January 26, 1998
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein Smith)
APPEARANCES
John J. Canniff, III, Esq., for the employee
Joann D. Walter, Esq., for the insurer
The insurer and employee cross appeal from a decision of an administrative judge awarding continuing partial incapacity benefits causally related to an accepted industrial injury in 1989. The insurer argues that the employee's partial incapacity, commencing on March 13, 1995, was causally related to a number of supervening work related incidents which occurred after the 1989 work injury. As the judge's findings more than adequately support his conclusion that causal relation between the employee's incapacity and the 1989 injury continued, we summarily affirm the decision on that issue. The employee in his appeal raises questions concerning the calculation of his average weekly wage and a § 8(1) penalty. We affirm the decision as to the average weekly wage, but reverse on the § 8(1) penalty.
We recount only the facts necessary to a discussion of the employee's issues. A § 10A conference was held on the employee's claim for benefits on August 28, 1995. (Conference Order, Employee Ex. 5.) On September 1, 1995, the judge ordered payment of § 34 incapacity benefits, along with § 50 interest, if applicable. Id. The employee's claim had been filed on April 20, 1995, more than sixty days prior to the conference order of payment. (Claim form, Employee Ex. 4.) The insurer paid the employee the full amount of the § 34 benefits entitlement owed from March 15, 1995 to September 12, 1995 in one check issued on September 7, 1995. (Dec. 16.) However, the insurer failed to pay the employee the § 50 interest due on the weekly benefits ordered. (Tr. 58.) When the de novo hearing took place on June 4, 1996, the § 50 interest remained unpaid, and the employee joined a claim for a penalty under § 8(1) for the insurer's failure to timely make that "payment due" pursuant to the conference order. (Dec. 2; Tr. 5, 51-52, 55-58.) The judge requested that the parties brief the issue. (Tr. 5, 157.) It does not appear from the record or the board file that the parties did, in fact, do so. Without mention of the failure to pay interest, the judge denied the employee's claim for a penalty under § 8(1):
General Laws c. 152, § 50 (St. 1991, c. 398, § 77), provides in pertinent part:
Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision.
The 1991 amendment is applicable to claims filed on or after December 23, 1991. St. 1991, c. 398, § 105.
General Laws c. 152, § 8(1) (St. 1991, c. 398, § 23), provides in pertinent part:
Any failure of an insurer to make all payments due an employee under the terms of an order, decision, arbitrators decision, approved lump sum or other agreement, or certified letter notifying said insurer that the employee has left work after an unsuccessful attempt to return within the time frame determined pursuant to paragraph (a) of subsection (2) of this section within fourteen days of the insurer's receipt of such document, shall result in a penalty of two hundred dollars, payable to the employee to whom such payment were required to be paid by the said document; provided, however, that such penalty shall be one thousand dollars if all such payments have not been made within forty five days, two thousand five hundred dollars if not made within sixty days and ten thousand dollars if not made within ninety days.
Where the Insurer issued a check to the Employee on September 7, 1995 (covering the time period from March 15, 1995 to September 12, 1995) pursuant to a conference order filed on September 1, 1995 (which would logically have been received by the Insurer 2-3 days later) I find no penalties due under Section 8(1).
(Dec. 16.)
This is the first time that a claim for a § 8(1) penalty for failure to timely pay interest under the terms of the conference order has reached this board. The insurer does not dispute that the § 50 interest claimed had not been paid as of the June 4, 1996 hearing, approximately nine months after it received the order of payment from the August 28, 1995 conference — sometime between September 2 and 6, 1995. The judge allowed the employee to join his penalty claim under the provisions of 452 CMR 1.20. The insurer did not oppose the joinder. (Tr. 5-10.) The employee introduced his claim form and the conference order into evidence (Employee Exs. 4 and 5), and testified that he had not received the interest due on the weekly benefits paid. (Tr. 56-58.) The requirements of 452 CMR 1.07(2)(b) were effectively met thereby.
The conference order was filed on September 1, 1995 (Employee's Ex. 5) and the insurer's check for weekly benefits issued on September 7, 1995. (Dec. 16; Employee Ex. 6.)
452 CMR 1.07(2) (b) states:
Claims for penalties under M.G.L.c. 152, § 8(1) shall be accompanied by a copy of the order, decision, arbitrator's decision, approved lump sum or other agreement or other relevant document(s) with which it is alleged the insurer has failed to comply, together with an affadavit signed by the claimant or the claimant's attorney attesting to the date payment was due, the date, if any, on which payment was made, and the amount of penalty the claimant is owed.
Section 50 interest on the weekly benefits ordered as a result of the conference is a "payment due the employee" under § 8(1). SeeDiaz v. Western Bronze Co., 9 Mass. Workers' Comp. Rep. 528, 533 (1995) (The language of § 8(1) "payments due the employee," means what it says: amounts that are required by an order, decision, etc., to be paid directly to the employee). We therefore conclude that the employee prevailed on his claim for a § 8(1) penalty as a matter of law. We reverse the decision in this respect, and order that the insurer pay $10,000 for failure to pay the interest due the employee within ninety days of receipt of the conference order requiring such payment.
The employee also contends that the judge erred by denying his claim for an increase in his average weekly wage based on the value of a 1989 Mercury Sable automobile provided by the employer for both work and his personal use. The judge denied this claim because the employee's testimony did not establish what value, if any, that company car had in 1989, when the industrial accident occurred. (Dec. 15.) The judge relied on Wheeler v. Jean Alden Stores, Inc., 6 Mass. Workers' Comp. Rep. 226 (1992), in which we affirmed a denial of the employee's claim for inclusion of the value of a company car in her average weekly wage. "The void left by the employee's failure to buttress her testimony with evidence of the car model, year and value, or alternatively, rental or loan payments made by the employer, as well as gasoline, insurance and maintenance costs is a gap too wide to bridge sustained only by speculation, guess or conjecture." Id. While we acknowledge that this employee put more evidence before the judge than his counterpart in Wheeler, i.e. the year, make and model of the car, we agree with the judge that the record as to the value of the car in the fifty-two week period prior to the industrial accident remained conjectural. See § 1(1).
We also agree with the judge that the employee's introduction of valuation evidence derived from the employer's policy instituted in 1994 had little bearing on the question of the automobile's value in 1989. (Dec. 14-15.)
We reverse the decision as to the § 8(1) penalty. The insurer is ordered to pay the employee $10,000. We affirm the decision in all other respects.
We award the employee an attorney's fee of $1,000.00 under the provisions of G.L.c. 152, § 13A(6).
So ordered.
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Susan Maze-Rothstein Administrative Law Judge
_____________________ Suzanne E.K. Smith Administrative Law Judge
Filed: January 26, 1998