Opinion
BOARD No. 013188-83
Filed: December 18, 1995
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel Wilson)
APPEARANCES:
Pasquale J. Ventola, Esq. for the employee
John R. Cowie, Jr., Esq. for the insurer
A hearing decision resulted in an award to the employee of permanent and total incapacity benefits under § 34A and specific compensation under § 36. Nevertheless, the employee appeals, contending that the judge failed to determine the actual date that the employee had exhausted his § 34 benefits. That date is needed because it fixes the starting point for § 34B cost of living adjustment benefits. The employee also argues that the judge erred by failing to award § 50 interest on the § 36 award and a prior period of § 34A benefits, and in failing to award § 14 penalties for illegal termination of weekly benefits. We summarily affirm the judge's dismissal of the employee's § 14 claim. We clarify the judge's decision regarding the commencement date of § 34A benefits. We vacate the decision with respect to the payment of § 50 interest, and award interest as follows.
The employee worked for thirty-two years as a pressman at a newspaper. He sustained hearing loss from the noisy work environment and was awarded temporary total incapacity benefits under § 34 from July 1, 1983 and continuing. See Keehnle v. Eagle Publishing Co., 4 Mass. Workers' Comp. Rep. 364 (1990). The employee had also claimed specific compensation benefits for loss of hearing under § 36(d) at the time of that initial proceeding. Because the employee failed to prove a permanent and total hearing loss, the judge specifically reserved the employee's rights under § 36(d). That decision was affirmed by the reviewing board. Id. at 365.
The insurer paid the employee § 34 benefits far in excess of the statutory maximum in effect at the time of the date of injury. In late 1992 the insurer recognized the overpayment and terminated § 34 benefits. (Dec. 3; Ex. 6.) This galvanized the employee to file a claim for § 34A permanent and total incapacity benefits, as well as benefits under §§ 14, 34B, 36 and 50. The judge awarded § 34A benefits by conference order, but denied the other claims. (Dec. 2.) That order was cross appealed. An impartial medical examination was conducted pursuant to § 11A. The impartial physician diagnosed a "moderately severe to profound sensorineural hearing loss with poor discrimination in both ears," causally related to the employee's work environment. The impartial physician also opined that this hearing loss was permanent in nature, with no prospects of improvement. (Dec. 4.)
Since the employee's date of injury, his last day of work, was June 30, 1983, he was entitled to $74,472.50, the aggregate maximum amount of benefits under the applicable versions of §§ 34 and 35. See G.L. c. 152, § 34 (St. 1981, c. 572, § 1).
Based on the medical evidence in the impartial report and the appropriate non-medical factors, the judge found that the employee was totally and permanently incapacitated within the meaning of § 34A. The judge also concluded that the employee had suffered a total loss of hearing in both ears compensable under § 36(d). The judge ordered that the insurer pay § 34A benefits "from October 15, 1992 to date and continuing, (or from such date as may be determined as the exact date Section 34 benefits were exhausted, to date and continuing) . . ." together with cost of living adjustments under § 34B. The claim that § 50 interest should be awarded was denied, since the judge concluded that weekly payments had continued throughout the proceeding. The judge also ordered payment for bilateral loss of hearing under § 36(d), but denied the employee's claim for illegal discontinuance under § 14. (Dec. 7.)
We agree with the employee that his right to § 34A benefits commenced as of the actual date of the exhaustion of § 34 benefits. The judge found this ultimate fact when he ordered that the insurer commence payment of § 34A benefits "from October 15, 1992, to date and continuing, (or from such date as may be determined as the exact date Section 34 benefits were exhausted, to date and continuing). . . ." Since the date that the maximum amount of weekly benefits was reached is easily ascertainable by the parties, we leave that calculation to them. The employee may file a claim for resolution of this issue in the unlikely event that the parties cannot agree on the actual termination date of the employee's § 34 benefits.
We also agree with the employee that the judge erred by failing to order § 50 interest on the prior closed period of § 34A benefits commencing on the filing date of the instant claim until the insurer's payment thereof pursuant to the May, 1993 conference order. The insurer had discontinued the payment of weekly benefits, and did not resume payments until the conference order directed it to do so. (Dec. 1-2; Ex. 6.) The current version of G.L.c. 152, § 50, applicable to the employee's § 34A claim, states:
"Notwithstanding the provisions of section two A of chapter one hundred and fifty-two of the General Laws, section seventy-seven of this act [1991 amendment to § 50] shall apply to only those claims filed on or after the effective date of this act[, December 23, 1991]." St. 1991, c. 398, § 105.
Whenever payments of any kind are not made within sixty days of being claimed by an employee, dependent or other party, and an order or decision requires that such payments be made, interest at the rate of ten percent per annum of all sums dues from the date of the receipt of the notice of the claim by the department to the date of payment shall be required by such order or decision. Whenever such sums include weekly payments, interest shall be computed on each unpaid weekly payment.
G.L.c. 152, § 50 (St. 1991, c. 398, § 77). The judge's finding, that weekly payments had continued to be made throughout the proceeding (Dec. 7), was erroneous as to that prior closed period of § 34A benefits paid pursuant to the May, 1993 conference order. We vacate the finding that no interest is due and order § 50 interest to be paid on those § 34A benefits.
We agree with the employee that the judge also should have awarded § 50 interest on the employee's benefits under § 36(d). § 50 interest indisputably applies to specific compensation awards under § 36. SeeMaloof's Case, 10 Mass. App. Ct. 853 (1980). The novel question posed here is whether interest should accrue from the filing of the initial § 36 claim in 1983. That earlier § 36 claim was specifically reserved by the administrative judge in his decision. The reviewing board in turn agreed for the reason that, "with respect to the extent of the hearing loss, we are not satisfied, nor was the Single Member, that a permanent loss was ascertained by either medical expert." Keehnle, supra at 365. If a medical end result had not been reached, the claim for specific compensation had not "matured" or "ripened," and there was no attendant obligation for the insurer to pay the claim. Therefore, there was no "loss of monies" that would warrant the provision of the remedy under § 50. See Arbogast v. McCord-Winn, Inc., 5 Mass. Workers' Comp. Rep. 189, 198 (1991); Graziano v. Polaroid Corp., 5 Mass. Workers' Comp. Rep. 43, 45, n. 4 (1991).
When the employee came back to the Board in 1992, however, he reasserted his claim for specific compensation for permanent and total loss of hearing under § 36(d). This renewed claim was determined by the judge to have merit and he awarded the employee the specific compensation sought. The obligation for the insurer to pay that sum relates back to the 1992 filing date, as this was the employee's assertion of the "mature" § 36 claim. Therefore, the award of § 50 interest should date back to the 1992 renewed filing date for the § 36 claim, not to the initial 1983 filing date. The judge's failure to award such interest in his decision was error. Interest on § 36 is due from the filing date of the claim in 1992, in accordance with the amended version of § 50 cited above (St. 1991, c. 398, § 77).
We realize that our construction of how § 50 applies to § 36 is different than the manner in which § 50 applies to compensation claims under other sections of the Act. However, an employee's § 36 claim is "a separate and distinct claim of a different nature" from claims for other types of compensation, i.e. weekly benefits. Maloof's Case, 10 Mass. App. Ct. 853, 854 (1980). For this reason, its distinct treatment under § 50 is not inconsistent with any other provision of the Act.
We award the employee a § 13A fee of $1,000.00.
So ordered.
_________________________ William A. McCarthy Administrative Law Judge
__________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Sara Holmes Wilson Administrative Law Judge
Filed: December 18, 1995