Opinion
BOARD No. 030673-92
Filed: March 27, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Maze-Rothstein and Smith)
APPEARANCES
Mitchell J. Wallman, Esq., for the employee
Joseph B. Bertrand, Esq. and Marie Leary, Esq., for the insurer
The employee appeals from the decision of the administrative judge on her initial liability claim which found a compensable injury and awarded a short period of benefits, ending on the date when she was offered suitable work by the employer. Because the facts found by the judge compel an award of § 35 partial compensation as a matter of law, we vacate the order of termination.
Valles was forty-nine years old when she injured her back while making a hotel bed in the course of her employment on July 18, 1992. Her average weekly wage was $388.62. Valles left work on the date of injury and did not return. On December 20, 1992, the employer offered her a light duty job as a room inspector paying $8.80 per hour for 20 hours per week. Valles declined the job offer maintaining that it was beyond her physical abilities.
After paying without prejudice pursuant to G.L.c. 152, § 7, the insurer stopped making the voluntary benefit payments. (Ins. Notification of Termination of Weekly Compensation.) The employee then filed a claim for compensation. After conference, the judge ordered § 34 benefits from October 11, 1992 to December 30, 1992. (Conference Order filed January 27, 1993.) Valles appealed claiming further benefits, and a hearing de novo was held on October 29, 1993. At the hearing, the insurer agreed that an industrial accident had occurred with incapacity (as previously determined at conference) until December 30, 1992. The sole issue litigated at hearing was benefit entitlement on and after December 30, 1992. (Tr. 10; Dec. 7.)
Section 8(1) provides: "An insurer which makes timely payments pursuant to subsection one of section seven, may make such payments for a period of one hundred eighty calendar days from the commencement of disability without affecting its right to contest any issue arising under this chapter. An insurer may terminate or modify payments at any time within such one hundred eighty day period without penalty if such change is based on the actual income of the employee or if it gives the employee and the division of administration at least seven days written notice of its intent to stop or modify payments and contest any claim filed. The notice shall specify the grounds and factual basis for stopping or modifying payment of benefits and the insurer's intention to contest any issue and shall state that in order to secure additional benefits the employee shall file a claim with the department and insurer within any time limits provided by this chapter." G.L.c. 152, § 8(1) (as amended by St. 1991, c. 398, § 23).
On January 25, 1994, the judge issued his decision denying and dismissing Valles's claim for § 34 benefits from and after December 30, 1992. In his decision, the judge adopted the deposition testimony of Dr. Walsh as controlling on the issue of causal relation and extent of physical disability. Based on the doctor's opinion, the judge found Valles suffered from herniated intervertebral disc as a result of her industrial injury. (Dec. 5, 7.) He then found that "[r]eference to [Valles's] age, education, work history and physical abilities does not suggest . . . a capacity for performing any work of a substantial . . . nature other than that which she was offered by the self-insurer on December 30, 1992. (Dec. 7.) (emphasis ours) The judge denied Valles's claim for benefits after the date of the job offer. (Dec. 7.) It is here that we find error of law.
The judge found that "[s]o much of the employee's claim as relates to the period July 18, 1992 to December 30, 1992, for purposes of Section 13A(5) of the Act, is deemed to have been established by acceptance at hearing." (Dec. 7.) The employee does not challenge this ruling.
Earning capacity, for purposes of §§ 34 and 35, is determined by using the "greatest" amount the employee is "capable of earning" as provided in § 35D. One type of post-injury earnings to be considered are those made available by an offer of suitable work.
Section 35D(3) provides in pertinent part, "[t]he employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability. . . ." G.L.c. 152, § 35D(3) (added by St. 1985, c. 572, § 45).
The light duty work offered by the insurer, as found by the judge, waspart-time employment. The earnings which were available from that work were not equal to or in excess of her average weekly wages because the hours of the offered employment were less. The finding that the employee only had the capacity reflected by the offer of suitable work required a legal conclusion that the "greatest" wages which the employee was "capable of earning" were those paid by that job. Section 35D then required that figure to be used to calculate the benefit entitlement under § 35. The § 35 formula required payment of partial incapacity benefits as of December 30, 1992 equal to sixty percent of the difference between the pre-injury average weekly wage of $388.62 and the post-injury earnings available from the offer of suitable work, $179 per week, to wit, partial incapacity payments of $107.40.
Section 35 provides in pertinent part: "While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury . . ." G.L.c. 152, § 34 (as amended by St. 1991, c. 398, § 63).
Accordingly, we vacate the termination order in the decision and order partial compensation in the amount of $107.40 commencing December 30, 1992. If either party alleges a change in medical or vocational conditions since the record closed, and makes a request to the reviewing board within 30 days of this decision, the case will be remanded for further proceedings to determine the extent of ongoing incapacity. See Collins v. M.B.T.A, 9 Mass. Workers' Comp. Rep. ___, slip. op. at 5 (March 27, 1995) (parties required to notify the reviewing board whether issues remained in dispute after entry of appellate decision). As liability was established by the decision, the employee has the right to adequate and reasonable health care services causally related to the work injury. G.L.c. 152, § 13 and 30.
So ordered.
________________________ Suzanne E.K. Smith Administrative Law Judge
________________________ Edward P. Kirby Administrative Law Judge
________________________ Susan Maze-Rothstein Administrative Law Judge
SKS Filed: March 27, 1996