Opinion
BOARD No. 079580-88
Filed: January 23, 1997
REVIEWING BOARD DECISION
(Judges Wilson, Fischel and Kirby)
APPEARANCES
William R. Neelon, Esq., for the employee.
Michael A. Fager, Esq., for the self-insurer.
Michael A. Fager, Esq., and Joyce E. Davis, Esq. for the self-insurer on brief.
The employee appeals from the decision of the administrative judge, who awarded a closed period of weekly benefits for total incapacity pursuant to G.L.c. 152, § 34, while simultaneously awarding weekly benefits for partial incapacity pursuant to G.L.c. 152, § 35 for the same time period. We agree with the employee's contention that the decision is both internally inconsistent and addresses a period not in dispute.
Diana Picardi, the employee, worked for Stop Shop (Bradlees division) in the capacity of distribution manager. The employee operated pallet jacks, high lifts and cherry pickers as well as received material on the loading dock. (Dec. 5.) Aside from her full time employment with Bradlees, the employee also worked part time on Friday and Saturday nights as a waitress for Joseph's Catering. (Dec. 5.)
At the time of the injury, Bradlees was a division of Stop Shop Co., which was the self-insurer. Subsequently, when Bradlees was divested from Stop Shop, it assumed its workers' compensation liabilities as a self-insurer. (Tr. 3-4.)
On December 9, 1988, the employee was pinned due to a mechanical malfunction in the cherry picker she was operating. She was trapped and suspended from her chest and ribs for approximately fifteen minutes before coworkers saw her plight and helped her down. Upon being released, the employee was taken by ambulance to the hospital where she was treated for complaints of pain in her back and ribs. (Dec. 6.) She continues to treat with various doctors for these ailments, in addition to buckling of her right leg due to pain which radiates down into that leg. (Dec. 7.)
Initially, the insurer paid benefits without prejudice and subsequently terminated benefits in 1989. The employee's claim came before an administrative judge in July 1989, whereupon § 34 benefits were reinstated. No appeal was taken by either party. In January 1991, the insurer's complaint to modify or discontinue compensation came before a different administrative judge. That judge assigned an earning capacity. A third administrative judge reaffirmed this order and both parties appealed, but later withdrew their appeals. (Dec. 2.)
The insurer again filed a complaint for discontinuance or modification of compensation on October 27, 1993, and the matter was scheduled for conference before the administrative judge who authored the decision currently on appeal to the review board. At the time of conference, the insurer also raised the issue of termination of benefits pursuant to § 35E. An order entered denying both requests. The insurer appealed the conference order to a hearing de novo before the same administrative judge. (Dec. 2.)
Upon the evidence presented at hearing, the judge concluded that the employee was totally incapacitated until the initial examination by Dr. Doherty on July 25, 1991, as a result of her work place injury on December 9, 1988, and that thereafter the employee was partially incapacitated and capable of light duty gainful employment with physical restrictions. (Dec. 36.) The judge ordered a closed period of § 34 benefits from January 23, 1991 to July 25, 1991, and also ordered the insurer to pay § 35 benefits from January 23, 1991 and continuing. (Dec. 38.) We have the case on the employee's appeal.
The employee correctly asserts that the judge's decision addresses a time period that, as a matter of law, was not properly in dispute. The decision ordered weekly benefits from January 23, 1991. (Dec. 38). As the insurer filed its complaint for modification or discontinuance on October 27, 1993, that is the earliest date to which a modification or discontinuance order may apply. Cubellis v. Mozzarella House. Inc., 9 Mass. Workers' Comp. Rep. 354, 356 (1995). "[T]he order of discontinuance may go back no further than the date the request was filed." Id. Hence, it was error for the administrative judge to reach behind the date on which the insurer filed its complaint. We vacate the administrative judge's orders insofar as they apply to the period prior to October 27, 1993.
We take notice that by conference order of January 23, 1991, a prior administrative judge discontinued § 34 benefits and assigned an earning capacity of $100.00 per week. The cross-appeals of this order were withdrawn, and the order stood until the self-insurer filed a complaint for modification or discontinuance on October 27, 1993.
The employee contends as well that the administrative judge's orders are internally inconsistent in that there are concurrent orders to pay both total incapacity benefits and partial incapacity benefits commencing on January 23, 1991. (Dec. 38.) In support of her challenge, the employee cites Cowan v. Springfield Assocs. Inc., 9 Mass. Workers' Comp. Rep. 503, 506 (1995), for the proposition that it is inconsistent to assign an earning capacity to an employee while simultaneously finding that the employee totally incapacitated for employment. Although we don't disagree that overlapping orders of partial and total incapacity benefits cannot stand, our conclusion on the first issue before us has dispositive effect. The overlapping orders of payment of § 34 and § 35 benefits, namely January 23, 1991 to July 25, 1991, predate the insurer's October 27, 1993 filing of the complaint for modification or discontinuance, and as stated above, are vacated.
Except as set forth above, the decision is affirmed.
We see another issue; namely the judge's application of § 41 as a bar to § 1 (1) adjustments. As this issue was not raised on appeal, we do not address it.
So ordered.
__________________________ Carolyn N. Fischel Administrative Law Judge
__________________________ Edward P. Kirby Administrative Law Judge
__________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 23, 1997