Opinion
16-P-46
03-07-2017
Kimberly LAVALLEY'S CASE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The appellant, Kimberly LaValley, appeals from a decision of the reviewing board of the Department of Industrial Accidents (board) summarily affirming the administrative law judge's April 23, 2015, order, which included an earning capacity calculation and an award of benefits based upon that calculation. We affirm.
The appellant filed a claim for workers' compensation on July 8, 2011, alleging that she had been totally temporarily incapacitated from a work related injury (bilateral carpal tunnel syndrome ) since June 1, 2011. The administrative judge issued an order, after hearing, requiring that the insurer pay LaValley $235.43 per week in partial benefits under G. L. c. 152, § 35. The judge's order failed to include a computation of LaValley's earning capacity under G. L. c. 152, § 35D. Both parties appealed to the reviewing board, which remanded the case "for further findings of fact with regard to the employee's earning capacity." On remand, the judge found, based upon a forty hour work week and the prevailing minimum wage, that LaValley had an earning capacity of $320 per week for the earlier period of her incapacity and $360 per week for the later period of her incapacity. As a result, the insurer was required to pay LaValley $121.91 per week from June 1, 2011, until December 31, 2014, and $97.91 per week from January 1, 2015, onwards. LaValley appealed to the review board. The reviewing board summarily affirmed. LaValley's appeal followed.
This was the maximum benefit available to the employee, based on her average weekly wage of $523.19 before the injury.
On January 1, 2015, the minimum wage increased from $8 per hour to $9 per hour.
On appeal, the decision of the reviewing board, and by extension, the decision of the administrative judge, is not reversed unless it is "wholly lacking in evidentiary support or [is] tainted by errors of law." Woolfall's Case , 13 Mass. App. Ct. 1070, 1070 (1982), quoting from Sweeney's Case , 3 Mass. App. Ct. 284, 287 (1975). We review the judge's decision against this legal standard.
Under G. L. c. 152, § 35, as appearing in St. 1991, c. 398, § 63, an employee who is partially incapacitated after a workplace injury shall receive "a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four." The parties stipulated that the appellant's average weekly wage before her injury was $523.19. Had she been eligible for total incapacity benefits under G. L. c. 152, § 34, she would have received sixty percent of her average pre-injury weekly wage, or $313.91.
Pursuant to § 35, LaValley's benefits could not exceed "more than seventy-five percent of what [she] would receive if ... she were eligible for total incapacity benefits under section thirty-four," resulting in maximum eligibility of $235.43 per week (seventy-five percent of $313.91). In the initial decision, the judge found that LaValley could "perform limited work," and she assigned the maximum benefit amount. However, the judge did not make a determination regarding LaValley's weekly earning capacity, and thus, absent from the judge's decision was any justification for her assigning to LaValley the maximum benefit allowable. The reviewing board remanded the matter for a determination of LaValley's earning capacity.
The reviewing board's decision states: "Because the judge's decision lacks an evidentiary basis to support the assessment of earning capacity, we recommit the case for further findings."
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On remand, the judge made this determination on the basis of the evidence presented at the initial hearing and the credibility determinations she had made with respect this evidence. LaValley complains that because the judge's second order was "oppositional" to the first order, in that her benefit award was lower, the judge was obligated to reopen the hearing and take new evidence. We disagree.
LaValley's argument rests on the flawed belief that the judge's second order was oppositional to the first. That was not the case. The first order did not contain a determination as to LaValley's earning capacity. The second order simply rectified this omission. The determination of LaValley's earning capacity was not in opposition to any determinations made in the first order because the first order contained no such determinations. Rather, it was a rational extension of the first order that rested on expert testimony the judge had already heard and credited. See Amon's Case , 315 Mass. 210, 215 (1943) ; Ingalls's Case , 63 Mass. App. Ct. 901, 902 (2005) (an administrative judge is free to accept or reject, in whole or in part, an expert's opinion).
The judge credited the testimony of the orthopedist who opined that LaValley could "perform limited work." She also credited the testimony of a vocational rehabilitation consultant whose opinion it was that LaValley was capable of working full-time "as a front desk clerk, a greeter or a hostess[,]" earning between $8 and $12.60 in one of these positions. This testimony amply supported the judge's earning capacity calculation. Ibid .
Once the judge rectified her omission and reached a determination of LaValley's earning capacity, she properly calculated LaValley's benefits award. Contrary to LaValley's position, the judge properly "explain[ed] its ‘source and application,’ including a ‘factual source’ for the monetary figure." Eady's Case , 72 Mass. App. Ct. 724, 726 (2008), quoting from Dalbec's Case , 69 Mass. App. Ct. 306, 316, 317 (2007). We see no error.
Decision of reviewing board affirmed .