Opinion
BOARD No. 069479-89
Filed: April 30, 1998
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel).
APPEARANCES
Theodore E. Dimauro, Esq., for the employee.
Peter J. Moran, Esq., for the insurer.
The issue raised by the employee's appeal is whether the employee is entitled to have his average weekly wage (and the compensation rate based on it) adjusted back to February 17, 1989, the date of injury, even though the employee and insurer, at the August 1994 hearing on the employee's claim for § 34A benefits, stipulated to a lower, incorrect average weekly wage; and even though this incorrect average weekly wage was the basis upon which the administrative judge, in his November 23, 1994 unappealed decision, ordered the insurer to pay the employee § 34A benefits.
In the decision on the employee's claim for adjustment of his average weekly wage, the judge recalculated the average weekly wage but only ordered the insurer to pay increased § 34A rates beginning November 24, 1994, the day after the date of decision on the original claim for § 34A benefits. We find error in this decision; the employee is entitled to have his compensation rate adjusted to the date he first became entitled to receive benefits based on the correct average weekly wage.
The facts are not in dispute. The employee was injured on February 17, 1989, and the insurer accepted the case. Following a hearing on the employee's claim for permanent and total incapacity compensation, the judge filed a decision on November 23, 1994 awarding § 34A benefits at a rate of $355.77 per week based on a stipulated average weekly wage of $533.65. He relied on a wage schedule, dated November 15, 1989, which did not include bonuses paid during the relevant time period. The judge ordered payment of the § 34A compensation from November 24, 1994 or from the date the § 34 benefits were exhausted, whichever was earlier. (February 13, 1997 Dec. 2; Ex. 1, stipulation of facts.)
Unless otherwise specified, references hereafter to "Dec. ___" are to the February 13, 1997 decision.
In 1990, the employee had made several unsuccessful requests for wage information which included bonuses. Prior to the 1994 § 34A hearing, an interim wage schedule was filed which was erroneous. (Dec. 2.) Nevertheless, the parties stipulated to the erroneous average weekly wage of $533.65 at the 1994 hearing.Id. Neither party appealed the hearing decision.Id. There was no allegation that the failure to report the bonuses on the 1989 wage forms was anything other than unintentional. Id.
The employee filed a claim dated November 16, 1995 seeking an upward adjustment in the average weekly wage from November 24, 1989, the date the employee began to receive benefits, to the present. The employee maintained that the 1989 wage schedule did not reflect bonuses. Based on information submitted at the February 28, 1996 conference on the matter, the judge ordered § 34A benefits at the rate of $381.17 per week based on an adjusted average weekly wage of $571.76. He ordered the payment of the recalculated benefit rate to commence on November 16, 1995, the date the claim for recalculation was filed. The order also included this instruction: "If appealed the insurer shall provide at hearing a complete weekly wage schedule, including bonuses, for the 52 week period prior to the injury." (Dec. Ex. B.) Both parties appealed. In compliance with the conference order, the employer provided a wage statement, including bonuses, which indicated an average weekly wage of $593.06 with a corresponding compensation rate of $395.59.
The hearing de novo was tried on an agreed Stipulation of Facts. (Dec. Ex. B.) While conceding that the proper average weekly wage would be $593.06, the insurer argued that the average weekly wage must remain at $533.65 as stipulated at the prior hearing on the § 34A claim; or, in the alternative, if any adjustment were to be made, it should be made only from November 16, 1995, the filing date of the new claim for recalculation. The employee requested that the average weekly wage be adjusted to $593.06 retroactive to February 17, 1989, the date of injury. (Dec. 2.)
Although the parties stipulated to $593.06, the figure was corrected to $593.40 at the hearing. (Employee's Brief, at 2; Exhibit A).
In his second hearing decision, dated February 13, 1997, the administrative judge ruled that the average weekly wage was $593.40, yielding a benefit rate of $395.60 per week, plus applicable COLA adjustments. (Dec. 5.) He ordered the adjusted payments to begin on November 24, 1994, the day after the filing date of the initial decision on the § 34A claim.Id. His reasoning included that the employee's stipulation to a lower average weekly wage at the time of the § 34A hearing precluded him from raising the issue for the time period up to and including the date of the issuance of the § 34A decision (i.e. November 23, 1994). (Dec. 4.) From that time forward the judge found that the employee was free to once again raise the issue as to average weekly wage. Id.
The method for establishing an employee's average weekly wage is governed by G.L.c. 152, § 1(1). Where an injured employee has worked for his employer during the twelve calendar months immediately preceding the date of injury, his total earnings are divided by fifty-two. Id; Locke, Workmen's Compensation, § 303, at 356 (2d ed. 1981). The parties agree that the employee's bonuses are properly includible in setting the correct amount of "earnings" for purposes of calculating the average weekly wage.
Only the employee has appealed the decision. And the only issue he raises is whether the judge erred in not correcting the average weekly wage back to the date of injury. Although the insurer did not appeal, it suggests that the judge erred in recalculating the average weekly wage at all; it raises issues of res judicata and collateral estoppel. We decline to reach these issues; the propriety of the judge's recalculating the average weekly wage is not before us. See Saugus v. Refuse Energy Systems Co., 388 Mass. 822, 830-831 (1983) (failure to take a cross appeal precludes a party from obtaining a judgment more favorable to it than the judgment entered below).
The judge did err in not correcting the average weekly wage back to the date of injury. In Norton v. National Wholesale Co., 7 Mass. Workers' Comp. Rep. 146 (1993), the average weekly wage for a January 3, 1985 industrial injury was an issue at a conference; the judge issued an order on January 12, 1987 ordering weekly benefits based on an erroneous average weekly wage. The error was a clerical one. The insurer appealed from the conference order, but, prior to hearing, the parties each filed a "Notice of Satisfaction." Id. at 147. Later, the employee brought a new claim for an industrial injury occurring on August 19, 1986. This claim was joined with the January 3, 1985 claim to determine if the employee was entitled to benefits, and, if so, whether the entitlement was a result of the new injury or as a result of the prior injury. In her decision following hearing, the judge inNorton refused to correct the erroneous average weekly wage figure appearing in the January 12, 1987 conference order because of, inter alia, the employee's failure to appeal from the initial order and the subsequent filing of a Notice of Satisfaction. Id. At 148. In Norton, we looked to Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 267 (1985), to support the use of equity powers to give the administrative judge the authority to correct the prior erroneous average weekly wage figure. Use of the equity power to correct an erroneous average weekly wage is consistent with the liberal interpretation to be given to c. 152. Norton, supra at 149. The fact that the employee in Norton was satisfied with the original conference order, which explicitly decided the disputed issue as to average weekly wage, did not preclude later recalculating it back to the date of injury to correct the initial error. Id. See also Ford v. Boston Edison Co., 1 Mass. Workers' Comp. Rep. 325, 326 (1988) (where correct wage schedule not sent to board for more than a year after judge ordered its production and almost four months after his decision was filed, justice and equity require implementation of correct average weekly wage). Consistent with Norton and Ford, and in the circumstances of the present case, we hold that the newly recalculated average weekly wage must be applied from the date of injury and forward. Cf. Brophy's Case, 327 Mass. 557, 559 (1951). There is no reason in equity to deny the employee what he was entitled to from the beginning of his receipt of benefits. The insurer is merely paying years later, and after having use of that money, what it should have paid from the beginning.
Accordingly, we reverse the decision and order that the insurer pay the employee benefits based on an average weekly wage of $593.40 from November 24, 1989, together with § 50 interest to be paid on the difference between the correct compensation rate and the amount actually paid.
So ordered.
_____________________ Frederick E. Levine Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
_____________________ Carolynn N. Fischel Administrative Law Judge
FEL/kai
Filed: April 30, 1998