Opinion
BOARD No. 045290-91
Filed: February 25, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Judith B. Gray, Esq., for the employee.
Paul A. Brien, Esq., for the self-insurer.
The self-insurer in this appeal asserts that the administrative judge erred by refusing to apply G.L.c. 152, § 35B to decrease the employee's weekly benefits in accordance with the 1991 amendments to §§ 34 and 35. The case involved an original injury date of August 26, 1991, and a finding by the judge of a medical deterioration after more than two months back at work, constituting a § 35B "subsequent injury" on January 18, 1994. (Dec. 2, 6.) The parties stipulated to an average weekly wage of $730.86. (Dec. 6.) The judge declined the self-insurer's invitation to apply § 35B, however, reasoning that "[i]t is apparent that the 1970 enactment of Section 35B was meant to increase the benefits available to an injured worker rather than have the opposite result." (Dec. 7.) We affirm the decision.
G.L.c. 152, § 35B (St. 1970, c. 667, § 1) provides, in pertinent part:
An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; . . .
For example, compare the 1991 version of § 34 to that which governed industrial injuries under the 1986 version.
G.L.c. 152, § 34 (St. 1991, c. 398, § 59) states, in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed one hundred fifty-six.
G.L.c. 152, § 34 (St. 1985, c. 572, § 42) stated in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty.
Earlier we responded to the issue presented by this appeal. We concluded in Kelly v. M.B.T.A., 10 Mass. Workers' Comp. Rep. ___ (May 14, 1996), that "the best way to harmonize the 1991 legislative rate reduction without diluting the original intent and continued meaningful existence of § 35B is to construe § 35B as an exclusively employee-invoked section of the Act." We thereby applied the conclusion we reached some months earlier in Puleri v. Scheaffer Eaton, 10 Mass. Workers' Comp. Rep. 31 (1996), that "§ 35B simply may not be applied to effect a reduction in the benefits that an employee otherwise would receive [without the application of § 35B]." Id. at 42. Those decisions dispose of the present appeal.
The self-insurer disagrees with our interpretation of § 35B in the context of the general overhaul of the Act occurring by way of the 1991 amendments. Our examination of § 35B began in Barbaro v. Smith Wesson, 9 Mass. Workers' Comp. Rep. 652 (1995), where we cited to Locke's 1968 treatise to illuminate the historical context of the legislature's action in enacting § 35B two years later. Barbaro dealt with the meaning of "rate." Although skimpy, the legislative history underlying § 35B's enactment made it clear that the legislature intended that the section would make available rates of compensation whichincreased along with the periodic upward revision of the benefits scales. Barbaro, supra at 657-659; Locke, Workmen's Compensation § 302 (1968). This underpinned our decision in Puleri v. Scheaffer Eaton, supra, that § 35B may not be used to decrease an employee's benefits.
The self-insurer takes us to task for relying on Locke to interpret the legislative intent underlying the enactment of § 35B. We find no legislative history, beyond what is cited in Barbaro, that aids in the interpretation of § 35B. In view of the paucity of relevant contemporaneous information regarding the meaning of "rate" in § 35B, we stand by our reference to the commentary of Locke. We reject the assertion that the enacting legislature was concerned with anything but keeping employees abreast of the increasing benefit rates at that time.
The self-insurer argues that it must be presumed that the legislature knew the effect its 1991 amendments would have on § 35B and that by leaving it intact, turned it inside out so that it became a vehicle to decrease weekly benefits. We rejected this proposition in Kelly, supra, and hold to our position. We do not believe that the "rule" of statutory construction argued by the self-insurer should be used to thwart the intent of the 1970 enacting legislature whose concern was the inflationary erosion of weekly benefits. Our construction derives from an understanding of the words of the statute, "considered in connection with the cause of its enactment, [and] the mischief or imperfection to be remedied. . . ." Registrar of Motor Vehicles v. Board of Appeals on Motor Vehicle Liability Policies Bonds, 382 Mass. 580, 585 (1981). Furthermore, we read § 35B together with the 1991 amendments reducing rates of compensation "so as to constitute an harmonious whole consistent with the legislative purpose." Id. "A revision of pre-existing statutes is to be read in the light of those statutes and as a continuation of those earlier provisions unless there is clear indication of a legislative intent to change the meaning." See v. Building Commissioner of Springfield, 246 Mass. 340, 343 (1923). There simply is no clear intention expressed by the legislature in 1991 that § 35B be transformed into its opposite — that it operate to penalize employees for attempting to return to work by forcing on them a decreased rate of compensation in the event they suffer a recurrence or deterioration in their medical condition in so doing. See Louis's Case, 424 Mass. 136 (1997), for similar reasoning supporting the court's conclusion that weekly partial incapacity benefits paid under § 35 should be included in calculating average weekly wage.
We agree with the self-insurer that the literal meaning of § 35B would lead to imposing decreases in benefits on employees who fall within the scope of the statute. However,
[s]tatutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation, [and] contemporary customs and conditions . . . . General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense.
Commonwealth v. Welosky, 276 Mass. 398, 401-402 (1931), cert. denied, 284 U.S. 684 (1932). Thus, we do not agree that the use of the word "shall" directs the mandatory application of § 35B in every case in which its factual predicates are satisfied.
In almost every section of [c. 152] the word "shall" is used. . . . The designation "mandatory" or "directory" often is convenient in discussing the meaning of "shall" and "may" in statutes. It is an aid to interpretation to establish tests by which to measure legislative intent. But all such tests must yield to the underlying legislative intent disclosed by the enactment as an entirety in the light of its dominant purpose and to declare its appropriate application to particular facts.
Swift v. Registrars of Voters of Quincy, 281 Mass. 276 (1932). At the time of its enactment, § 35B pointed only at increasing the employee's rates of compensation to reflect those available at the time of a "subsequent injury." To apply § 35B specifically to decrease the employee's benefit package works a disincentive to the employee's returning to the workforce, as the risk of reinjury is then coupled with the risk of erosion of weekly indemnity compensation. In our view, that result is not mandated by the words of the statute.
The use of "shall" in § 35B, as in every other section of c. 152, is not pertinent to the question of which party raises an issue for determination and does not foreclose our interpretation that § 35B now be solely employee-invoked. An employee receives no award of § 34A permanent and total benefits unless she requests that the judge award such benefits, notwithstanding the presentation of evidence that would warrant such an award and that section's direction that the "insurershall pay. . . ." See Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 101, 103 (1994). An insurer receives no benefit from the application of § 35E's presumption of non-entitlement to weekly indemnity payments — "employee . . .shall not be entitled" — upon the appearance of its predicate evidence, unless the insurer raises the section at hearing.Bamihas v. Table Talk Pies, 9 Mass. Workers' Comp. Rep. 595, 598-599 (1995). Likewise the sections regarding proper notice and claim, §§ 41 and 49, while using the directive "shall," do not operate to bar compensation unless the insurer brings them forward as issues for the judge to determine.
Therefore, the self-insurer's argument that no language in § 35B makes its application a matter of election of the employee, while true, is beside the point. Our conclusion to that effect in Kelly, supra, is merely the most forthright means that we saw to effectuate the legislature's intent in enacting § 35B, in the face of the 1991 amendments. Indeed, § 35B always was an employee-invoked section prior to December 23, 1991, analogous to §§ 41 or 49 being insurer-invoked sections. Nor is our interpretation an implied repeal of § 35B, which continues to have vitality where the employee's average weekly wage increases, such that the employee seeks to gain that benefit at the time of a "subsequent injury," and when the employee is capped by the state average weekly wage at the time of her original injury and is allowed the higher weekly cap at the time of the "subsequent injury." See Puleri, supra.
We see our interpretation of § 35B as putting into effect the reasoning of Cutter, J. in Madariaga's Case, 19 Mass. App. Ct. 477 (1985). There the Appeals Court considered the application of § 51A, in a case where § 36A benefits had been reduced between the date of injury and the date of the final decision. Id. at 482-483. The court first adopted language fromMcLeod's Case, 389 Mass. 431, 435 (1983):
"§ 51A reflects a legislative intent to avoid obsolescence of compensation rates by requiring benefits to be computed in accordance with the statutory rate in effect at the time of the final decision, when no payments have been made during the period the claim has been contested."
Id. at 483. The court continued:
We regard this statement as indication that the court (because of the facts with which it then was dealing) interpreted § 51A in the light of the general upward trend of compensation benefits and rates over the years. [Footnote omitted.] The Supreme Judicial Court has not yet decided whether it would reach the same result in a case involving less benefits at final decision than on the date of injury. There would be substantial basis for deciding that the Legislature did not intend that § 51A should have any application where benefits were reduced between injury and final decision.
Madariaga's Case at 483. (Emphasis added.)
Following our earlier conclusions reached in Barbaro, Puleri, and Kelly, supra, as well as Taylor v. Taylor Industries, 10 Mass. Workers' Comp. Rep. ___ (May 24, 1996), we affirm the administrative judge's decision.
So ordered.
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Susan Maze-Rothstein Administrative Law Judge
The reviewing board's position in Barbaro Puleri, Kelly andTaylor, supra, appears to contradict an opinion of the Supreme Judicial Court rendered after their issuance. Based on that case, and for the reasons given herein and previously stated in my dissent in Taylor, I dissent from the majority view that the judge was not required to base the employee's compensation on the employee's average weekly wage and the rates in effect at the date of his recurrence.
In Louis's Case, 424 Mass. 136 (1997), the court affirmed that portion of the reviewing board opinion in Louis v. Anthony's Pier Four, 8 Mass. Workers' Comp. Rep. 311 (1994) which held that the employee's average weekly wage at the time of her first injury could not be used to compute her wages at the time of the second injury. Id., 424 Mass. at 139. The court's rationale was based on the successive insurer rule which it declined to modify. Instead, it reversed the board's opinion excluding partial disability benefits from the calculation of the employee's average weekly wage at the time of the second injury. Id. at 136. In so doing it noted that, because of the 1991 amendments to G.L.c. 152, §§ 34, 34A and 35, its holding "is not likely to effect as favorable a solution for some other workers who may find themselves in this same predicament in the future." Id. at 142. "A more comprehensive solution will have to await legislative action." Id. at 143.
Section 35B puts employees who have returned to work and suffered a recurrence on the same footing as employees who sustain a new personal injury. It provides that:
An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.
By recognizing adjustments to the subsequent injury's average weekly wage, Louis and the companion case of Sliski, 424 Mass. 126 (1997), provide some relief from the harshness of this rule where an employee has returned to work with diminished earning capacity. However, here the employee's average weekly wage was not diminished.
Under § 35B, an employee is entitled to have his benefits calculated under the law in effect on the date of the "subsequent injury." The term "rate" in § 35B includes the full benefit package applicable to a post-December 23, 1991 injury. In other words, a qualified employee would be entitled to a new period of one hundred fifty-six weeks of § 34 benefits for total incapacity, starting on the date of the "subsequent injury." Indeed, this is the only way to read the statute's direction that the new rate of compensation is to be paid "whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, [the employee] shall not receive compensation unless the subsequent claim is determined to be a new injury" (emphasis supplied). All of the quoted language would be rendered surplusage if recurrence were not to be treated exactly as new injuries when § 35B is applied.
Compare the dicta in Rainville v. Roy's Towing, 9 Mass. Workers' Comp. Rep. 662, 664 (1995).
i.e. one who has returned to work for more than two months and suffers a change in his physical condition making him unable to continue to perform his duties. G.L.c. 152, § 35B; Don Francisco's Case, 14 Mass. App. Ct. 456, 440 N.E.2d 525 (1982), further app. rev. denied, 387 Mass. 1104, 443 N.E.2d 1322 (1982).
Section 35B does not decrease an employee's benefits, but makes them the same for all employees with a similar "injury" date. "Under § 35B . . . the employee's right to compensation . . . originate[s] in the change in the employee's condition subsequent to his return to work [i.e. the `subsequent injury']." Don Francisco, supra, 14 Mass. App. Ct. at 463, 440 N.E.2d at 529. In Bernardo, the court held that the date of the "subsequent injury" controlled the rights and obligations of the parties. Id., 24 Mass. App. Ct. 48, 506 N.E.2d 157 (1987), further app. rev. denied, 400 Mass. 1102, 509 N.E.2d 1202 (1987).
The "subsequent injury" in this case occurred after the enactment of the rate reducing 1991 amendments, St. 1991, c. 398, §§ 59 and 63. Thus, as recognized in Louis, the post 1991 versions of §§ 34, 34A and 35 apply, as they were the rates in effect at the time of the "subsequent injury." See Louis, supra, at 142-143. Nor is this result unequitable or unjust.
Newsome was earning the same amount of money on the date of his recurrence as he had earned when originally injured. The only purpose served by applying the old rates is to allow him to receive an obsolescent amount of compensation not available to workers who sustain a "new injury." Such an outcome frustrates the intent of the 1991 Legislature to reform the benefit structure.
Section 35B was enacted to prevent the obsolescence of benefits structures. The "obsolescence" it now addresses is the inflated rates of compensation available prior to December 23, 1991. The legislature's intent in enacting its overhaul of the workers' compensation law in 1991 is clear: to save insurers, and thus employers, money, and keep business in the Commonwealth. See Summary of Weld-Cellucci Worker's Compensation Bill, legislative file for St. 1991, c. 398 in the State Archives. If the 1991 Legislature had intended that § 35B be used only to increase rates, and not to decrease them when they became obsolete, it knew how to draft legislation appropriately. See G.L.c. 152, § 2A (". . . act . . . which increases the amount . . . of compensation payable to an injured employee . . . shall . . . shall apply only to . . ."). Yet it chose not to restrict § 35B in this fashion when it amended the rate structure.
The consistent and harmonious operation of § 35B and the newly enacted versions of §§ 34, 34A and 35 is clear: the "subsequent injury" rate of compensation applies, without regard to which party it benefits. The repugnancy between the statutes, required as the legal foundation for the majority's outcome, does not exist. See Boston v. Board of Education, 392 Mass. 788, 792 (1984) and cases cited therein.
Nevertheless, the majority rules that the rate adjustment is not due unless the employee specifically requests it. The plain language of the statute belies this interpretation. The statute provides that such an employee "shall . . . be paid such compensation at the rate in effect at the time of the subsequent injury . . . ." The word "shall" is ordinarily interpreted as having a mandatory or imperative obligation. Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387, 1389 (1983). The statutory language does not limit the party who may seek the benefit of § 35B.
If the Legislature had intended to make § 35B elective, or its application discretionary with the judge, it knew how to do so. See, e.g. G.L.c. 152, § 24 (only employees may waive their right of action at common law against their employers); § 28 ("If a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only"); § 51A ("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").
"Our Constitution, Part 1, art. 11 guarantees to the people of the Commonwealth equal justice . . . in conformity to the laws. This guaranty of equal protection implies that all litigants similarly situated may appeal to the courts both for relief and for defense under like conditions and with like protection and without discrimination." Old Colony R. Co. v. Assessors of Boston, 309 Mass. 439, 449-450, 35 N.E.2d 246, 253 (1941). The majority's opinion constructs a system where only one party to the litigation may receive the benefit of the law.
For these reasons, I would reverse the decision and order payment of "compensation at the rate in effect at the time of the subsequent injury," pursuant to the G.L.c. 152, § 35B and the 1991 versions of G.L.c. 152, §§ 34 and 35.
__________________________ Suzzanne E.K. Smith Administrative Law Judge
Filed: February 25, 1997