Opinion
BOARD Nos. 2495587/1813593
Filed: June 27, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Kevin T. Daly, Esq., for the employee.
Richard Allen, Esq. prior to hearing, Diana Bonafede, Esq. on appeal, for Honeywell, self-insured.
Douglas Birkenfeld, Esq., for CNA Insurance Co.
The employee appeals from a decision in a multiple injury case which found an aggravation of a pre-existing work-related condition and awarded ongoing partial compensation from the date of layoff based upon the second injury average weekly wage and a regained earning capacity of $300.00 per week. We agree with the employee that the judge erred by allowing the insurer for the first injury to withdraw from the proceeding prior to the hearing. In addition, we agree that the subsidiary findings of fact on the extent of incapacity are inadequate where they fail to address the employee's actual earnings post-injury. Consequently, we recommit the case for further proceedings consistent with this opinion.
On April 28, 1987, Scotti suffered an industrial injury to his right shoulder arising out of and in the course of his employment for Honeywell. The self-insured employer accepted liability, and paid § 34 temporary total incapacity benefits.
Scotti went back to work, but could not resume his former duties. The self-insured paid Scotti § 35 partial incapacity benefits based upon the difference between his pre- and post-injury earnings. On July 19, 1991, when Scotti's wages increased to his pre-injury average weekly wage level, it discontinued his weekly compensation benefits. In 1990, Loral Infrared Imaging Systems (Loral) purchased the Honeywell unit where Scotti worked. (Dec. 3.) Loral was insured by CNA.
In September 1992, Loral assigned Scotti to a job which required repetitive use of his arms. On the advice of Dr. Scolnick, who viewed his job, the employee's job duties were modified and he was allowed to leave thirty minutes prior to his lunch break to apply ice to his shoulder. (Dec. 3; Tr. 28-29.)
On February 18 1993, Scotti experienced shoulder pain while lifting a ten pound jug. Scotti was unable to work for two periods of four days each due to that lifting incident. Scotti was laid off on April 23, 1993, and received unemployment benefits from July 31, 1993 through March 12, 1994. (Dec. 3.)
Section 34B of G.L.c. 152 provides:
(1) No benefits shall be payable under section thirty-four or section thirty-four A for any week in which the employee has received or is receiving unemployment compensation benefits.
(2) Any employee claiming or receiving benefits under section thirty-five who may be entitled to unemployment compensation benefits shall upon written request from the insurer apply for such benefits. Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under said section thirty-five. Any unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period, or, if for a period of time for which partial disability benefits have already been paid, shall be credited against any future partial disability benefits which are or may become payable.
Scotti filed two claims for compensation, one against Honeywell for further incapacity resulting from the April 28, 1987 industrial accident (docket no. 024955-87), and an original liability claim against CNA for an alleged injury on February 18, 1993 arising out of and in the course of employment for Loral Infrared and Imaging Systems, Inc. (docket no. 018135-93). Both claims were conferenced on March 15, 1994. After the § 10A conference, the administrative judge ordered payment by CNA, and denied Scotti's claim against Honeywell. (Dec. 2; Conference Orders filed March 29, 1994.)
Both Scotti and CNA appealed to a hearing de novo. Scotti's appeal listed April 28, 1987 as the date of injury but listed Loral as the employer, CNA as the insurer and the docket number which had been assigned for the second injury.
CNA then withdrew its appeal. (Notification of Withdrawal dated June 15, 1994.) As a consequence, Honeywell moved to be released as a party on the basis that the employee did not file an appeal against it, but only against CNA. (Motion to Release Honeywell, Inc. as a Party, dated September 1, 1992.) The judge granted the motion releasing Honeywell from the hearing proceeding. (Dec. 2.)
Scotti underwent an impartial medical examination on August 30, 1994. The impartial examiner opined that Scotti's right shoulder pain was caused by a "rotator cuff tear caused by the 4/28/87 injury with subsequent impingement and chronic tendonitis." (Dec. 3-4.) The impartial examiner also opined that the February 18, 1993 incident aggravated Scotti's original shoulder injury, but that incident did not cause Scotti's disability. (Dec. 4.) The impartial examiner opined that Scotti suffered from a permanent partial impairment of his right shoulder. (Dec. 5.) Scotti testified that the aggravation only lasted seven to nine days. (Tr. 35.)
The judge concluded that Scotti suffered from two industrial injuries — the original April 28, 1987 injury and the aggravation injury on February 18, 1993. Having found that the subsequent injury took place, the judge concluded that the insurer on the risk at that time must be charged with the payment of Scotti's entire compensation. (Dec. 4.) The judge determined that Scotti had an earning capacity of $300.00, and awarded 35 benefits at the weekly rate of $167.09 based on the February 18, 1993 average weekly wage of $578.48, from April 23, 1993 and continuing. (Dec. 5-6.) Scotti claims error.
Scotti argues that 1) the allowance of the motion to dismiss the self-insurer was contrary to law, 2) the judge's finding that a subsequent injury occurred on February 19, 1993 was error and 3) the finding of a $300.00 earning capacity was arbitrary. We agree with the first argument which is dispositive.
The judge should not have dismissed the employee's claim against Honeywell over the employee's objection. Under G.L.c. 152, § 10A(3), any party to a conference proceeding aggrieved by the conference order has the right to request a 11 evidentiary hearing. Sections 10A(3) and 15A require that such hearing, where properly requested, be held.
Section 15A provides:
If one or more claims are filed for an injury and two or more insurers, any one of which may be held to be liable to pay compensation therefor, agree that the injured employee would be entitled to receive such compensation but for the existence of a controversy as to which of said insurers is liable to pay the same, such one of said insurers as they may mutually agree upon or as may be selected by a single member of the board shall pay to the injured employee the compensation aforesaid, pending a final decision of the board as to the matter in controversy, and such decision shall require that the amount of compensation so paid shall be deducted from the award if made against another insurer and be paid by said other insurer to the insurer agreed upon or selected by the single member as aforesaid. If, however, said insurers cannot agree that such employee would be entitled to compensation irrespective of the existence of such controversy, then a hearing to determine the question of liability and the payment of compensation shall be held forthwith by the division, such hearing to take precedence over other pending matters.
Here both insurers agreed that the second insurer should pay the employee. This agreement was resisted by the employee who wanted a consolidated hearing on his claims against both insurers. The question on appeal is whether the judge erred by allowing the motion to release Hunnewell as a party.
The court has dealt with this procedural question inBorstel's Case, 307 Mass. 24 (1940). In Borstel, after hearing, the first insurer was found liable for the employee's compensation. It appealed. The second insurer contended that the claim for compensation against each insurer must be treated as an independent case, that the claim for review by the earlier insurer brought before the reviewing board only the claim against that insurer, and that the decision of the single member in favor of the later insurer was left standing as a final and conclusive determination that it was not liable. Id. at 26. The court reasoned that under the practice for which the later insurer contended, an employee would have to file an appeal against the insurer absolved by the hearing decision, lest he lose his rights against both insurers. "Such a practice, instead of being `as simple and summary as reasonably may be' . . . would be technical and confusing." Id. at 26-27. Relying on the policy indicated by G.L.c. 152, § 15A, the court held that "claims against successive insurers for compensation for a single disability are treated as constituting a single proceeding." Id. at 27. It concluded therefore that the appeal by the first insurer brought the second insurer before the reviewing board.
We see no reason to deviate from the Borstel court's reasoning and so reach a similar result. The employee's hybrid appeal for hearing perfected the employee's right to a hearing involving both insurers. The administrative judge erred in dismissing the employee's claim against Honeywell. SeeBechtold v. Compo Industries, 1 Mass. Workers' Comp. Rep. 318, 321-322 (1988).
Board rules now attempt to alleviate this potential confusion. 452 Code Mass. Regs. § 1.11(1)(b) provides:
(b) in a multiple insurer claim, all the individual appeal forms shall accompany a cover sheet approved by the Department which identifies all insurers and states the board number of each claim. One check payable to the Department in the amount of the requisite filing fee appended to the multiple appeal cover sheet with all individual appeal forms presented in a timely manner shall perfect all appeals. . .
The case must be recommitted for a new hearing with all necessary parties participating. After hearing, the judge shall determine whether the employee sustained a second industrial injury, and if so, how long the effects of that injury lasted. The second injury insurer remains responsible for all compensation due the employee so long as the effects of its injury continue to participate causally in any ongoing incapacity. See Louis's Case, 424 Mass. 136, 141 (1997). "This principle applies even though the significance of the most recent injury is relatively slight and a more serious former injury remains the major cause of the incapacity." Carrier v. Shelby Mut. Liab. Ins. Co., 370 Mass. 674, 676 (1976). Pending the new decision, pursuant to G.L.c. 152, § 15A, the existing compensation order shall remain in effect.
The employee raises one additional issue which will reappear in the new hearing and so we comment on it. He argues that the judge's findings on the extent of incapacity are inadequate because they fail to discuss the evidence of his post-Loral job for K-Mart which paid only $100 per week. Where an employee has returned to work after an injury, G.L.c. 152, § 35D requires consideration of the actual post-injury earnings. It provides:
For the purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following: —
(1) The actual earnings of the employee during each week; . . . .
(4) The earnings that the employee is capable of earning. (emphasis supplied)
A judge cannot disregard actual post-injury earnings without explanation. See Welch v. A.B.F. Systems, 9 Mass. Workers' Comp. Rep. 407, 410-412 (1995). In her decision after the new hearing, the judge should make specific findings on this issue.
So ordered.
______________________________ Suzan E.K. Smith Administrative Law Judge
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze Rothstein Administrative Law Judge
Filed: June 27, 1997