Summary
In Cathline v. J D Truck, Inc., 12 Mass. Workers' Comp. Rep. 343 (1998), an administrative judge ordered the insurer to pay the employee § 35 benefits using the amount of unemployment benefits the employee collected as the earning capacity in fixing the weekly partial rate.
Summary of this case from Piekarski v. Non-Wovens, NoOpinion
BOARD No. 07384091
Filed: June 19, 1998
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Levine).
Judge Fischel participated in panel discussions, but is no longer a member of the reviewing board.
APPEARANCES
Richard C. Hyman, Esq., for the employee.
Lisa M. Carmody, Esq., for Travelers Insurance Company.
Richard Florino, Esq., for Sentry Insurance Company at hearing.
Travelers Insurance Company (Travelers) appeals from a decision in which an administrative judge concluded that the employee had suffered an industrial injury on July 16, 1991, and awarded partial incapacity benefits for a closed period from August 1, 1991 to July 31, 1992, and then ongoing, temporary and total incapacity benefits. The insurer challenges only the judge's award of one year of partial incapacity benefits, simultaneous with the employee's receipt of unemployment compensation benefits, and argues that the judge failed to apply the exclusions provided in § 36B. See infra. We agree, reverse the award of § 35 benefits, and recommit the case for further findings on the extent of incapacity during that period.
On January 25, 1981, the employee suffered an industrial accident in which he injured his lower back. He was out of work for approximately six weeks, and received workers' compensation benefits from Sentry Insurance Company for that period. The employee treated for his injury and wore a back brace for a year after his return to work. For the most part, the employee continued to perform the same duties as before his injury. (Dec. 5.)
On July 16, 1991, the employee again injured his lower back while attempting to stop a moving truck, resulting in pain radiating down his left leg and into his foot. He worked a few more days in pain, and then took a pre-arranged, two week vacation, during which he noted some improvement in his back and left leg pain. (Dec. 5-7.) Since that July 1991 incident, however, the employee has experienced constant low back, left leg, left hip and left foot pain. (Dec. 14.)
When the employee returned from vacation, the employer laid him off, (Dec. 6), whereupon the employee sought and received unemployment compensation benefits from August 1, 1991 until July 31, 1992. (Dec. 16; July 26, 1993 Tr. 19-20.) In November of 1991, the employee experienced an increase in his back and leg pain, and started wearing his back brace again. In May 1992, the employee's left leg pain worsened when he walked. He began treatment with a neurologist, who started him on an aquatic therapy program. (Dec. 7.)
Neither the insurer on the risk in 1991 or in 1981 accepted the employee's claim for workers' compensation benefits. After the claim was denied at the § 10A conference, the employee appealed to a full evidentiary hearing. (Dec. 4.) In his hearing decision, the judge found the subsidiary facts as set out above.
On January 19, 1994, the employee was examined by a § 11A impartial physician, Dr. Michael Sorrell, who diagnosed the employee's condition at the time of the examination as a herniated L4-5 nucleus pulposus that caused left L5 radiculopathy and genitourinary dysfunction. The impartial physician opined that the employee was permanently and totally disabled, that he could not bend without provoking his symptoms, and could lift only five to ten pounds intermittently. The doctor further restricted the employee from walking on uneven surfaces, and stated that he was at a medical end result. (Dec. 8-9; Statutory Ex. 1.) The judge found the medical issues complex, and the report inadequate "due to the passage of time from the receipt of Dr. Sorrell's [January 19, 1994] report and deposition [May 17, 1994] . . . . ." (Dec. 9.) See § 11A(2). All parties submitted additional medical testimony. The judge found that of the employee's expert neurosurgeon, Dr. James Wepsic, most persuasive. (Dec. 9-10, 15.) Dr. Wepsic examined the employee on March 25, 1993, and on March 13, 1996. He opined that the employee was totally disabled due to the compression of his L5 nerve root caused by the L4-5 ruptured disc, and causally related this injury to the employee's July 1991 industrial accident. (Dec. 10.) Dr. Wepsic also opined that the employee's disability remained total from the time he originally examined him in 1993 until the employee's March 1996 examination. (Dec. 10-11; Dep. of Dr. Wepsic 6-14.)
We assume that the judge was referring to the passage of time between the receipt of the impartial medical evidence in 1994 and the drafting of his decision. We also note the lapse of time between the taking of the lay testimony on July 26, 1993 and the judge's receipt of the impartial medical evidence six to ten months late as another reason for the judge's finding of inadequacy. See O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16, 20-22 (1995). Appeal on constitutional grounds dismissed, O'Brien's Case, 426 Mass. 16 (1996).
The judge adopted the opinions of Dr. Wepsic and Dr. Sorrell, the impartial physician, and concluded that the employee was totally incapacitated due to the July 1991 work injury. (Dec. 14-15.) The judge ordered that Travelers, the insurer on the risk at the time of that injury, pay the employee benefits for temporary, total incapacity. Additionally, the judge ordered that the insurer pay partial incapacity benefits for the period of August 1, 1991 to July 31, 1992, "at the rate to be determined based on the amount collected by the Employee in unemployment benefits and [the stipulated] average weekly wage of $320.00 . . . ." (Dec. 16.) It is this order of partial incapacity benefits that brings the insurer to the reviewing board.
At issue is the application of G.L.c. 152, § 36B. That section states in its entirety:
(1) No benefits shall be payable under section thirty-four or thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits.
(2) Any employee claiming or receiving benefits under section thirty-five who may be entitled to unemployment compensation benefits shall upon written request from the insurer apply for such benefits. Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under said section thirty-five. Any unemployment
compensation benefits received shall be credited against partial disability benefits payable for the same time period, or, if for a period of time for which partial disability benefits have already been paid, shall be credited against any future partial disability benefits which are or may become payable.
We agree with the insurer that the plain language of the statute is at odds with the judge's order, "[t]hat the Insurer (Travelers) pay to the Employee partial incapacity compensation under Section 35 at the rate to be determined based on the amount collected by the Employee in unemployment benefits and [the stipulated] average weekly wage of $320.00 . . . ." (Dec. 16.) This order effectively equates the amount of unemployment benefits with the employee's earning capacity. That is inapposite to the statute's directive, that "[a]ny unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period" (emphasis added), and puts the cart before the horse. G.L.c. 152, § 36B. The analysis for the period at issue should first focus on the degree of the employee's causally related medical impairment and a determination of how that medical impairment, together with the vocational factors, affects the employee's ability to obtain work in the open labor market. SeeScheffler's Case, 419 Mass. 251, 256 (1994). Only after a finding is made on earning capacity do the unemployment compensation benefits come into play, either as a credit against partial incapacity benefits or as a bar to total incapacity benefits. As we observed in Smith v. American Tissue Mills, 10 Mass. Workers' Comp. Rep. 450, 453 (1996), both unemployment benefits and workers' compensation benefits "`are charges on industry, but . . . it was not intended [by the legislature] that industry should be saddled with the double burden of paying [unemployment] benefits and [workers'] compensation during the same period in which an employee is not earning wages.'" Id., quoting Pierce's Case, 325 Mass. 649, 658 (1950).
Because § 36B must be applied correctly, the order of partial incapacity benefits for the period of August 1, 1991 to July 31, 1992 is reversed. We recommit the case for the judge to assess and make findings on the extent of incapacity for that closed period, and to apply the provisions of § 36B to either bar compensation under § 34 or reduce § 35 compensation in accordance with the unemployment benefit credit.
So ordered.
______________________ Sara Holmes Wilson Administrative Law Judge
______________________ Frederick E. Levine Administrative Law Judge
FILED: June 19, 1998