Opinion
BOARD No. 06573088
Filed: October 22, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Louis P. Massaro, Jr., Esq. for the employee.
Allen Whitestone, Esq., for the insurer.
This complaint for modification or discontinuance of benefits is brought before the reviewing board on an appeal by the insurer, which argues that the judge erred, i) by failing to determine the employee's average weekly wage, ii) by applying § 51 incorrectly and, iii) by assigning an earning capacity that did not comport with the provisions of § 35D. We agree that the judge failed to make findings addressing the number of hours the employee worked per week during the year prior to his industrial accident for the purpose of determining the average weekly wage. We therefore recommit the case for further findings regarding that issue. We have no reason to think that the judge did not consider the insurer's evidence of jobs within the employee's capabilities so we reject the insurer's [§] 35D argument. As we think the judge's application of § 51 was correct at least as respects the insurer, we likewise reject the insurer's argument on that issue.
An argument could be made that § 51 should have been applied on an earlier date than the one chosen by the judge. We leave the date undisturbed as the employee did not appeal.
The employee had been an apprentice pipefitter for approximately four years when he injured his back at work on September 12, 1988. (Dec. 3, 5.) The insurer accepted liability and paid § 34 temporary total incapacity benefits from the date of injury until it was authorized to discontinue such payments and to commence § 35 partial incapacity payments, pursuant to a conference order filed by the judge on December 11, 1992. (Dec. 1.) The insurer, claiming to be aggrieved by the order, appealed for a hearing under § 11.
At hearing, the employee claimed § 35 benefits from the December 11, 1992 conference order and continuing, as well as the benefit of the increase in weekly wages available under G.L.c. 152, § 51. The insurer defended on the issues of average weekly wage, and extent of incapacity, and it denied that § 51 applied. (Dec. 1-2.) The insurer introduced into evidence DIA Form 117, the weekly wage computation schedule for the employee's year of work prior to the accepted industrial injury. (Insurer Ex. 2.) The employee offered testimony from the business manager and secretary treasurer for the employee's pipefitter union, Local 537. The judge credited the union manager's testimony that 1) the employee was earning $17.46 per hour at the time of his industrial injury as a fourth year apprentice, 2) that the hourly wage for a journeyman pipefitter, after the five year apprenticeship, was $21.82 in 1988, and 3) that after at least two renegotiations of the contract since 1988, the employee would have been earning $24.64 per hour as a journeyman pipefitter as of the time of hearing. (Dec. 5-6, 9-10.) The employee was examined pursuant to § 11A. The impartial physician opined that the employee's present medical condition — a 20% functional impairment of the back — was causally related to the industrial injury. (Dec. 7-8.)
General Laws c. 152, § 51 states, in pertinent part:
Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage.
The judge found that the employee was capable of skilled work, having completed a program in drafting and design of heating, ventilating and air conditioning systems. The judge determined that the employee could perform sedentary work as a "take off" man in that field. (Dec. 8-9.) The judge therefore assigned the employee an earning capacity of $500.00. (Dec. 11.) The judge applied that earning capacity to an average weekly wage, increased by the provisions of § 51, to $985.60. That amount was based on a forty hour week at the $24.64 per hour that the employee, "under natural conditions in the open labor market," would have been making but for his industrial injury. (Dec. 10-11.) The insurer was therefore ordered to pay the employee § 35 benefits at the rate of $323.73 per week. (Dec. 11.) Aggrieved, the insurer appealed to the reviewing board.
The insurer contends that the judge erred by failing to consider that the employee worked on average less than a full forty hour week in the year prior to his industrial injury, as evidenced in Insurer's Ex. 2. It cannot be disputed that Insurer's Ex. 2 indicates that the average weekly wage of the employee in the year preceding his injury was $496.00. This is significantly less than the $698.00 per week he would have made if he had averaged a forty hour week at his $17.06 hourly wage. The judge did not make findings of fact regarding the average number of hours worked each week by Mr. Villani in the fifty-two weeks preceding his injury. When the judge looked at § 51 and decided to apply it, he concluded that the employee would work a forty hour week, and fixed the new $985.60 average weekly wage on that basis. This conclusion is not sufficiently supported in the subsidiary findings. While it is conceivable that the "natural conditions" within the meaning of § 51 would include an increase in the number of hours the employee worked, the judge's conclusion to that effect borders on the speculative. We therefore recommit this case for further findings regarding the average length of the employee's work week in the year prior to the industrial injury and as projected when applying § 51.
The insurer next argues that the judge's application of § 51 was erroneous in another respect, in that he should not have based the § 51 wage on a union contract that was not in existence on the date of injury in 1988. We disagree. The judge's findings are clear and supported by evidence, that by his anticipated advancement from an apprentice to a journeyman pipefitter the employee satisfied the age and experience criteria of the statute and indeed would have been earning the $24.64 hourly wage that the contract of his union at the time of the hearing provided for journeymen pipefitters. This is exactly the expectable increase in wages that § 51 is intended to effectuate. We think that the judge's interpretation of § 51's "natural conditions in the open labor market" as including renegotiations of union contracts is correct, and in no way contrary to law. See Richard's v. Walbaum's Food Mart, 10 Mass. Workers' Comp. Rep. ___ (March 29, 1996).
As the administrative judge who presided at the hearing no longer serves as such, we return this case to the senior judge for reassignment to a new administrative judge for a hearing de novo on the issues of the employee's average weekly wage as discussed above. The judge's order that the insurer pay § 35 benefits at the rate of $352.00 per week shall continue in the meantime.
So ordered.
____________________________ William A. McCarthy Administrative Law Judge
____________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: October 22, 1996
I concur that the judge erred in calculating the initial average weekly wage. I disagree with the majority's remand of the initial average weekly wage issue; an order should be entered vacating the erroneous average weekly wage and awarding benefits based on the uncontested wage statement. As the insurer directly raises the issue of the date when § 51 should be applied to adjust the average weekly wage, the board should address it. I agree with the majority's ruling on § 35D. I will address each issue in turn.
I. AVERAGE WEEKLY WAGE
The majority correctly rules that the judge erred as a matter of law in calculating the employee's initial average weekly wage when he multiplied the employee's hourly rate times forty. Such calculation failed to reflect the amount of money actually earned by the employee in the twelve months immediately preceding the date of injury because the employee did not routinely work a forty hour week. The purpose of the workers' compensation act is to compensate an employee for his lost earning capacity. Gunderson's Case, No. SJC-06946, slip op. at 2 (September 30, 1996). The purpose is not to put the employee in a better position than he was in prior to the injury. Herbst's Case, 416 Mass. 648, 651, 624 N.E.2d 564, 566 (1993). The proper method of calculating the initial average weekly wage under the circumstances of this case was to divide the employee's pre-injury annual income by fifty-two. See Id., 416 Mass. at 650, 624 N.E.2d 566; G.L.c. 152, § 1 (1); Szwaja v. Deloid Associates, 2 Mass. Workers' Comp. Rep. 40, 42 (1988).
The record will only support the result urged by the insurer, to wit: an initial average weekly wage of $496.00. Therefore, we should reverse that portion of the decision and order benefits from the date of injury to the date of the § 51 increase based on that figure. Remand of the initial average weekly wage issue is not appropriate under these circumstances. Tallent v. M.B.T.A., 9 Mass. Workers' Comp. Rep. 794, 799 (1995) citing Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993).
II. TIMING OF § 51 AVERAGE WEEKLY WAGE ADJUSTMENT
The majority's refusal to correct the judge's mistiming of § 51's application, while correcting the error in the initial average weekly wage deprives the employee of five years of benefits to which he is entitled. Furthermore, it will result in an order creating a large overpayment to the employee, subjecting the employee to onerous recoupment. See G.L.c. 152, § 11D(3). Justice requires that the § 51 mistiming issue be addressed and the error corrected.
See note 1 in majority opinion.
The judge erred as a matter of law in selecting the date of the impartial examination as the time to apply the § 51 adjustment. That date has no rational connection to the date when the employee's wage would have increased due to changes in his age and experience. The judge should have made the § 51 adjustment on the date when the employee, but for the injury, would have become a licensed union journeyman pipefitter, to wit: September, 1989. The labor agreement in effect at that time provides a clear measure of the amount the "under natural conditions, in the open labor market, his wage [rate] would be expected to increase." G.L.c. 152, § 51; see Gunderson's Case, supra. However, further evidence is required on the average earnings of a union journeyman pipefitter under that labor agreement as we cannot assume that the work hours were constant. See Szwaja, supra; see also Varano's Case, 334 Mass. 153 (1956) (case recommitted for further evidence where neither party offered accurate evidence as to the average weekly wage).
Arguably, any cost of living adjustment pursuant to G.L.c. 152, § 34B would then run from the § 51 adjustment date. See Puleri v. Sheaffer Eaton, 10 Mass. Workers' Comp. Rep. 31, 42, n. 11 (1996) (coordinating COLA and the wage adjustment of § 35B), appeal docketed, No. 96-5-118 (Mass.App.Ct.); Hoffman v. M.B.T.A., 8 Mass. Workers' Comp. Rep. 1, 6 (1994) (coordinating COLA and § 35C).
III. CALCULATION OF POST-INJURY EARNING CAPACITY
Section 35D instructs us that the award of partial compensation benefits must be based on the greatest of several methods of calculating post-injury earning capacity. Under § 35D(3) and (5), the judge must determine whether particular work is suitable and available. Once the judge finds medical suitability for a particular job, the next analytical step in the earning capacity analysis is to determine whether the employment "bears a reasonable relationship to the employee's work experience, education, or training either before or after the employee's injury." G.L.c. 152, § 35D(5). Other factors are not relevant. See Major v. Raytheon Corp., 7 Mass. Workers' Comp. Rep. 90, 93-94 (1993) (§ 35D(3) does not permit consideration of a change in residence). If an offered job is vocationally reasonable, the judge then calculates the amount which the employee could earn if he accepted the job. See DeLeon v. Accutech Insulation Contract, 10 Mass. Workers' Comp. Rep. ___, slip op. at 5 (October 10, 1996) (no error for AJ to rely on earnings available from offered job when return to suitable work unsuccessful because employee did not give it an honest effort). If earnings from offered work are greater than those ordinarily available to the employee in the competitive labor market, see § 35D(4), the judge must use the earnings from that particular job to determine the amount of partial compensation to which the employee is entitled under G.L.c. 152, § 35.
Section 35D(4) provides: "The earnings that the employee is capable of earning."
The applicable version of § 35 provides in pertinent part:
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average weekly wage before the injury and the weekly wage he is capable of earning after the injury, but not more than the maximum weekly compensation rate.
G.L.c. 152, § 35, as amended by St. 1985, c. 572, § 44.
However, where an employee makes a good faith job application and is not hired, the judge is not always bound by § 35D(3) to use the earnings from that job in calculating the amount which the employee is capable of earning post-injury. Section 35D(3) requires that, in addition to being suitable, the job "has been made available to the employee." Although, under § 35D(4), a judge may consider earnings from a particular job which an employee is capable of performing, § 35D(3) does not require a judge to base his determination of post-injury earning capacity on it unless the judge is persuaded that the particular suitable job was made available to the employee, i.e. that the employee did not return to that work for reasons unrelated to the injury. See DeLeon, supra; Welch v. A B F Systems, 9 Mass. Workers' Comp. Rep. 407, 410-412 (1995); McNeice v. Berkshire Medical Center, 8 Mass. Workers' Comp. Rep. 246, 247 (1994); Major, supra at 94.
I agree with the majority that the judge's determination of the employee's post-injury earning capacity was not arbitrary, capricious or contrary to law, in the sense of having adequate evidentiary and factual support and disclosing reasoned decision making within the particular requirements governing a workers' compensation dispute. See G.L.c. 152, § 11C; Scheffler's Case, 419 Mass. at 258, citing Robinson's Case, 416 Mass. 454, 457-458 (1993); Attorney Gen. v. Sheriff of Worcester County, 382 Mass. 57, 62 (1980); and Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534 (1985). The judge made no error in determining the post-injury earning capacity without using the salary of a specific job which the administrative judge found the employee capable of performing, but for which he applied and was not hired.
CONCLUSION
In conclusion, I would reverse the average weekly wage determination, order benefits based on an average weekly wage of $496.00 from the date of injury until September, 1989, and remand for a determination of the § 51 adjusted average weekly wage thereafter. ____________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: October 22, 1996