Opinion
BOARD No. 02536492
Filed: April 10, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein).
APPEARANCES
Stephen J. Durkin, Esq., employee.
Joseph S. Buckley, Jr., Esq., for the insurer.
The self-insurer appeals from the decision of an administrative judge ordering payment of G.L.c. 152, § 35 partial incapacity benefits at the higher rate provided in § 35B. Because the judge failed to make the necessary findings in order to trigger the application of § 35B, we reverse the decision and recommit the case for further findings consistent with this opinion.
Themmen, an M.B.T.A. bus driver, sustained a back injury in June 1992 while in the course of her employment. (Dec. 4.) The self-insurer paid compensation between June 15 1992 and September 2 1992 when Themmen returned to modified work as a bus monitor. (Dec. 5.) Her duties in this position involved occasionally pulling the bus doors open as well as bending, being on her feet for most of the shift, and getting on and off buses to ensure they were properly cleaned. (Dec. 5.) On March 2 1995, Themmen was cleared by the self-insurer's medical clinic to return to work as a bus driver. She refused the position because of her own physician's opinion and stopped working on March 2 1995. Id. She was terminated in April 1995. Id. Themmen had an average weekly wage of $392.16 on June 15 1992, the original date of injury, and $529.00 per week from September 2 1992 when she returned to work until March 8 1995 when she left. (Dec. 3, 5.)
Themmen's claims for compensation under §§ 35, 35B, 13 and 30 were denied following a conference. She then appealed to a hearing de novo. After considering the lay and medical evidence, the judge issued his hearing decision finding that Themmen had a partial incapacity causally related to the industrial injury of June 15 1992. (Dec. 9.) The administrative judge applied § 35B and ordered the self-insurer to pay § 35 compensation from March 9 1995 and continuing based upon the higher average weekly wage of $529.00 with an assigned earning capacity of $320.00 per week. (Dec. 11.)
The self-insurer appeals, contending that the judge erred in applying § 35B without finding that the employee sustained a subsequent injury within the meaning of that section. We agree.
Our worker's compensation act bases the right to weekly compensation benefits on incapacity caused by a work injury. G.L. c. 152, §§ 34, 34A and 35. The compensation rate is generally fixed by the average weekly wage in effect on the injury date, as calculated pursuant to G.L.c. 152, § 1(1). Don Francisco's Case, 14 Mass. App. Ct. 456, 459 (1982) and cases cited. However, § 35B provides for a different rule, under certain circumstances.
Section 35B 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 . . . .
G.L.c. 152, § 35B, added by St. 1970, c. 667, § 1.
The terms "subsequently injured" and "subsequent injury" in § 35B mean a worsening in the employee's physical or mental condition, which occurs at least two months after his return to work. To be eligible for compensation in accordance with § 35B, an employee must show more than a new period of incapacity because of the former injury. Czarniak's Case, 14 Mass. App. Ct. 467, 468 (1982). Inability to obtain or perform the job to which the employee returned will not trigger its application. Id. at 468-469. An employee must establish that his condition has deteriorated. Calheta's Case, 14 Mass. App. Ct. 464, 465 (1982). Only then is an employee entitled to compensation at the rate in effect on the day the new period of incapacity commences. Because the judge has not made any finding about whether Themmen's medical condition deteriorated after her return to work, the award of benefits at the § 35B rate cannot stand.
Where the judge failed to make a finding on an essential element of proof in this § 35B claim, and the record does not compel a finding one way or the other as a matter of law, recommittal is appropriate. G.L.c. 152, §§ 11B and 11C. If on recommittal, the judge finds a worsening, he should then determine whether there was a retroactive wage increase that had vested by the "subsequent injury" date. The compensation rate for any "subsequent injury" would be based on such pay. See Gunderson's Case, 423 Mass. 642 (1996) (interpreting G.L.c. 152, § 1(1) to include a pay increase negotiated post-injury but retroactively applicable to pay periods within the 12 months preceding the date of injury).
Accordingly, we reverse the decision and recommit the case for a new decision consistent with this opinion. In light of the passage of time during the pendency of the appeal, the judge may take whatever additional evidence is necessary to render a just decision.
So ordered.
____________________ Suzanne E.K. Smith Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: April 10, 1998