Opinion
10-P-2100
10-18-2011
JACKSON ELLIS, JR.'s CASE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Jackson Ellis, Jr. (employee) appeals from a decision of the Industrial Accidents reviewing board (board) that affirmed the denial, by an administrative judge, of his claim to increased benefits under G. L. c. 152, § 51. The employee contends on appeal that the judge's decision was based on 'speculation,' and, therefore, was arbitrary and capricious. As we disagree, we affirm the decision of the board.
In 2007, the employee brought a claim that he was entitled to an increased weekly benefit under § 51, seeking to enhance his settlement resulting from a 2004 injury. The employee based this claim on his belief that the 2004 injury prevented him from realizing his life-long dream of becoming a police officer, a position in which he would earn a significantly greater salary than that earned at the time of the injury. By statute, an employee is entitled to an increase in his weekly wages if '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.' G. L. c. 152, § 51, as amended by St. 1991, c. 398, § 78. This inquiry focuses on the vocational profile of the claimant when injured, and does not take into consideration postaccident activities. Wadsworth's Case, 78 Mass. App. Ct. 101, 105 (2010), further appellate review granted, 459 Mass. 1101 (2011).
Although the insurer initially resisted, the claim for the original injury was ultimately settled in 2007.
The employee's claim wholly relies on his asserted intention to become a police officer. However, the evidence shows that, at the time of his injury, the employee had taken only preparatory steps to meet this goal. In particular, the employee obtained an associate's degree in criminal justice in 2001 and had taken and passed two civil service examinations, in 2001 and 2003, although the employee had never been put on the hiring list for an open position. Prior to the 2004 injury, the employee also had failed two physical examinations, one in the military and one corresponding to a written civil service test. After taking the civil service examinations, the employee remained employed as a landscaper for the years leading up to his accident. Moreover, in the three-year period extending from the original injury in 2004 to the application for increased wages in 2007, the employee took no additional steps toward achievement of his goal to become a police officer and he remained employed in menial capacities. The board noted the administrative judge's finding that the employee failed to 'participat[e] in active training to acquire the skills necessary to enter a career in law enforcement,' and concluded that '[h]is mere intention to attempt to enter that line of work cannot support his claim under § 51.'
The board observed:
'[T]he judge saw no evidence that in the near period prior to his injury, the employee was participating in active training to acquire the skills necessary to enter a career in law enforcement. Although he had obtained his associate's degree in criminal justice in 2001, the employee continued to work in landscaping for the next three years, demonstrating no 'increased marketable skills or upgraded jobs.' Although he possessed a gun license, that licensure did not result 'in an occupational speciality.' At best, the employee had undertaken only preliminary steps, which the judge found insufficient to satisfy his burden of showing he reasonably had an expectation of wage increases within any potential law enforcement position. His mere intention to attempt to enter that line of work cannot support his claim under § 51.'
This court will uphold a decision of the reviewing board unless it deems the decision 'arbitrary and capricious,' that is, devoid of 'any rational explanation that reasonable persons might support.' Cambridge v. Civil Serv. Commn., 43 Mass. App. Ct. 300, 303 (1997). With regard to the employee's assertion that the board erred because the administrative judge's decision was based on mere 'speculation,' appellate review of the board's decision in the instant case falls within the controlling law of Wadsworth and Sliski's Case, 424 Mass. 126 (1997). In Wadsworth, this court followed the teaching of Sliski, interpreting the language of § 51 as requiring the injured employee to show sound 'economic projections' that 'will reflect expectations regarding skill development and job progression.' 78 Mass. App. Ct. at 104, quoting from Sliski, supra at 135. This court failed to find in Wadsworth that the board acted arbitrarily or capriciously in reversing the administrative judge's award of a wage increase to the employee, in light of the employee's failure to introduce any evidence of sufficient skill or training that supported a 'reliable projection of increased wages over time.' Wadsworth, supra at 105. Similarly, on this record, the employee failed to establish that his abilities and prospects, at the time of his original injury, would have naturally led to employment as a police officer, with a concomitant wage increase. Thus, the employee was not entitled to increased benefits under § 51. The decision of the board was, therefore, neither erroneous as matter of law nor arbitrary or capricious.
Since the employee did not prevail on appeal, his request for appellate attorney's fees is denied.
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Decision of reviewing board affirmed.
By the Court (Kantrowitz, Graham & Fecteau, JJ.),