Opinion
BOARD No. 027546-94
Filed: December 24, 1997
REVIEWING BOARD DECISION
(Judges Levine, Wilson and Fischel)
APPEARANCES
Wayne A. Gallo, Esq., for the employee.
John G. Preston, Esq., for the insurer.
The employee appeals from a decision of an administrative judge reducing her weekly incapacity benefit payments for her accepted industrial accident. The employee argues that the judge erred by assigning a $300.00 weekly earning capacity when the employee's individual written rehabilitation program (IWRP) under 452 CMR 4.07 caused her to spend well over forty hours each week carrying out the program. (Employee Ex. 2.) We agree, and reverse the judge's assignment of the $300.00 weekly earning capacity.
The decision also substantially increased the employee's average weekly wage. (Dec. 9.) There is no issue before us as to that.
The employee, a flight attendant, sustained an industrial injury on June 14, 1994, when she fractured her right heel while performing safety exercises. (Dec. 4.) She was fifty-eight years old at the time of the hearing. (Dec. 3.) The insurer accepted liability for the injury, and commenced § 34 temporary total incapacity payments. (Dec. 3.) In September 1995, pursuant to the provisions for vocational rehabilitation contained in G.L.c. 152, §§ 30E-30H, the employee enrolled in an Associates Degree program in drug and alcohol counselling at the Northshore Community College. (Dec. 5; Employee Exhibit 2, "OEVR Individual Written Rehabilitation Plan"; Tr. 49-50.) The judge found that the program "involves a relatively grueling class and internship schedule." (Dec. 5.) The program entails three hours of class attendance, three to four days per week; at least four hours per day studying; approximately ten hours per week commuting and approximately sixteen hours per week working in an unpaid internship. (Dec. 5; Tr. 14-20, 49-50.) The employee maintained a 3.94 cumulative grade point average in her degree program. (Dec. 5.)
The judge found that the employee "studies most of the days and attends classes for 3 hours at night." (Dec. 5.)
The insurer brought a complaint to discontinue or modify weekly benefits, which the judge denied at the § 10A conference. The matter then went to a hearing. (Dec. 2.) Pursuant to G.L.c. 152, § 11A(2), the judge allowed additional medical evidence. (Dec. 3.) The judge determined, based on the testimony of the employee's medical experts, that the employee remained partially disabled from work requiring prolonged standing, stooping or lifting. (Dec. 7.) The employee's partial disability was due to her lower right extremity problems and causally related to her work-related right heel fracture. (Dec. 7-8.) The judge concluded, as of the last examination of the employee by her expert neurologist on October 9, 1996, that the employee's medical condition had improved, and that she was no longer totally disabled. (Dec. 8; Employee Ex. 4.) The judge also found, based on the employee's credible testimony, that she had a partially completed Associates Degree and the physical tolerance to engage in a fairly rigorous course of study. (Dec. 5, 8.) The judge concluded that the employee's motivated efforts to return to the work force, as shown by her successful performance (3.94 grade point average) in her vocational rehabilitation program, supported the assignment of an earning capacity. Id. The judge therefore reduced the employee's weekly benefits from § 34 to § 35 as of October 9, 1996, with an assigned weekly earning capacity of $300.00. (Dec. 8.)
The employee contends that the judge's assignment of an earning capacity in the present circumstances was erroneous. Under the statutory provisions, the employee could not refuse to meet with the office of education and vocational rehabilitation, without jeopardizing her benefits. § 30G. After being deemed suitable for vocational rehabilitation, the employee was required to undergo the prescribed program, or lose fifteen percent of her weekly benefits. Id. The employee's IWRP, which the insurer signed, was an exhibit at the hearing. (Employee Ex. 2.) The judge credited the employee's testimony concerning the amount of time she devoted to carrying out the IWRP, which included time to attend classes, study, commute, and do an internship. This time commitment exceeded forty hours per week. (Dec. 5; Tr. 14-20, 49-50.)
We think that it is arbitrary to find that the partially incapacitated employee in the present case, in addition to devoting full-time to a mandatory program of vocational rehabilitation, has the capacity to work enough additional time each week to earn $300.00. The judge's determination to that effect was an implicit finding that the employee was capable of holding the equivalent of two jobs. We do not think the partially incapacitated employee, however well motivated she obviously is, should be held to such a rigorous schedule. See Murphy v. T.W.A., 11 Mass. Workers' Comp. Rep. 94, 103-104 (1997) (board concluded no rational basis for the judge's finding that the employee could work up to eighty hours per week, which assumption was the basis for earning capacity assignment). Cf. Zatsos v. Borden Resinite, 11 Mass. Workers' Comp. Rep. 60, 63 (1997) (board recommitted case for reexamination of incapacity due to change in light duty job from eight hour shifts to twelve hour shifts). Upon completion of the vocational rehabilitation program in December 1997, the employee will be in a position to use her new training to earn substantial wages, perhaps in amounts equal to or greater than her pre-injury average weekly wage. "[T]he insurer cannot complain of reasonable efforts made in good faith by the employee to better [her] future position in life." Paltsios's Case, 329 Mass. 526, 528 (1952).
The judge's finding that the employee had the physical tolerance to engage in a rigorous course of study is not an adequate basis for the assignment of the $300.00 earning capacity. "The fact that an employee has enrolled or is participating in a vocational rehabilitation program paid for by the insurer or the department shall not be used to support the contention that the employee's compensation should be decreased in any proceeding under this chapter." G.L.c. 152, § 35D(5). In appropriate circumstances, courts have not viewed educational advancement and career training as evidence of earning capacity. See, e.g.,Paltsios's Case, supra, at 528 (affirming award based on total incapacity, court stated, "It is true that he has not performed any work since the injury, but that might well be ascribed to the fact that he was attending school"); Khachadoorian's Case, 329 Mass. 625, 629-631 (1953) (court affirmed permanent and total incapacity award and board's conclusion "that the employee's attendance at school in the circumstances did not relieve the insurer of liability"). The relevant question was whether the employee could spend well over forty hours each week in a mandatory program of vocational rehabilitation, and still be able to earn $300.00 per week in addition to that activity. In the circumstances of this case, we consider that it is arbitrary to assign an earning capacity.
Accordingly, we reverse the decision and reinstate the employee's § 34 temporary total incapacity benefits.
We are aware that the employee's § 34 benefits will have exhausted on June 14, 1997. The employee may now bring a claim for § 34A or § 35 benefits. Of course, when the employee has completed the IWRP or has otherwise altered or ceased her course of study, the demands of the IWRP may no longer affect her earning capacity.
So ordered.
____________________________ Frederick E. Levine Administrative Law Judge
____________________________ Sara Holmes Wilson Administrative Law Judge
____________________________ Carolynn N. Fischel Administrative Law Judge
Filed: December 24, 1997