Opinion
BOARD NO.: 05299576
Filed: September 10, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Wilson)
APPEARANCES
William F. O'Shea, Esq., for the employee Gerard Pugsley, Esq., for the insurer
The employee appeals from a decision on his claim for restoration of § 34A permanent and total incapacity benefits. The judge, relying on G.L.c. 152, § 8(2)(j), denied the claim because the employee was incarcerated. The employee contends on appeal that his § 34A benefits were vested property rights when § 8(2)(j) was adopted and thus their termination under that statutory section violated his right to due process. We disagree and affirm the decision.
The parties do not contest the facts. Howard F. Barnard received a personal injury to his back on April 18, 1976 arising out of and in the course of his employment with John J. Nissen Baking Co. As a result of the injury, he underwent back surgery. Barnard began receiving § 34A weekly compensation benefits for permanent and total incapacity. In 1991, the Legislature amended the Workers' compensation benefits where "the employee has been incarcerated pursuant to conviction for a felony or misdemeanor and has thereby forfeited any right to compensation during such period." G.L.c. 152, § 8(2)(j), as amended by St. 1991, c. 398, § 23. At some point after the commencement of § 34A benefits, Barnard became and remains incarcerated. Relying on this amendment, on June 27, 1996, the insurer stopped Barnard's weekly benefits payments. Barnard then filed the pending claim for restoration of § 34A benefits and § 8 penalties for an illegal termination.
The judge applied § 8(2)(j) and ruled that Barnard forfeited his right to § 34A weekly compensation benefits during the period of his incarceration. She found that the insurer's unilateral discontinuance of benefits was in accordance with the statute and concluded as a matter of law that Barnard is not entitled to § 34A benefits during his incarceration. She therefore denied his claim.
On appeal, the employee contends that § 8(2)(j) cannot be constitutionally applied to eliminate his § 34A benefits as they are vested property rights. We do not answer constitutional questions unless they necessarily must be reached. Neff v.Commissioner of Dept. of Indus. Accidents, 421 Mass. 70, 72 (1995). Here, we are able to resolve the issue based on the facts of the case, the statute and the intent of the Legislature. In doing so, we presume that the statute is constitutional. See Tobin's Case, 424 Mass. 250, 252 (1997). In Connolly's Case, 418 Mass. 848, 853 (1994), the court held that a prospective application of § 8(2)(j) raises no constitutional issue. In the present case, § 8(2)(j) operates prospectively, eliminating the employee's § 34A entitlement beyond June 27, 1996, years after the statute's effective date of December 23, 1991.
The employee argues that Connolly's Case does not govern the outcome here because the incapacity benefits at issue in this case are permanent, rather than temporary. He contends that his right to continuing receipt of § 34A benefits vested upon their commencement, prior to the adoption of § 8(2)(j). There is no merit to that contention.
Weekly compensation benefits compensate an employee for lost earning capacity and not for injury, Scheffler's Case, 419 Mass. 251, 256 (1994); Tobin's Case, 424 Mass. at 253, and thus are never fixed and immutable. The fact of a prior § 34A award does not prevent a subsequent inquiry into changed conditions. "The nature of the inquiry under § 34A is the same as under §§ 34 and 35, relating respectively to total disability and partial disability." Vass's Case, 319 Mass. 297, 300 (1946). At any time after an award of § 34A benefits, the insurer may seek to have them modified or discontinued. Gramolini's Case, 328 Mass. 86, 89 (1951). In such a proceeding, the employee bears the burden of proving continuing benefits entitlement.Ginley's Case, 244 Mass. 346, 348 (1923).
Other states, which have reached contrary results on the question of whether permanent and total incapacity benefits are vested property rights, may place the burden of proof in a discontinuance action on the insurer.
Section 34A expressly requires the claimant to prove a present causal connection between the injury and the wages lost. Vass's Case, 319 Mass. at 299. Ongoing § 34A benefits are subject to discontinuance whenever the injury is no longer responsible for the wage loss. See Hummer's Case, 317 Mass. 617, 622 (1945) (prior adjudication that heart condition was aggravated by the injury was not an adjudication that, whatever the heart condition might be in future years, it must be deemed due to the injury). The 1991 Legislature determined that the purpose of the Worker's Compensation Act, providing wage loss protection to employees who incur a loss of earning capacity as a result of a work injury, is not served by paying benefits to an incarcerated employee who cannot earn any wages because of his incarceration, and whose room and board is being provided by the State. The language of its amendment, § 8 (2)(j), does not distinguish between temporary and permanent incapacity benefits. It refers only to "weekly compensation benefits" being forfeited during incarceration. The judge was correct to decline to create such a distinction.
Following Connolly's Case, supra, we conclude that the § 34A benefits in dispute here are not vested property rights and thus the premise of the employee's constitutional argument fails. The decision is not arbitrary or capricious, or contrary to law. We therefore affirm it. G.L.c. 152, § 11C.
So ordered.
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Sara H. Wilson Administrative Law Judge
_________________________ William A. McCarthy Administrative Law Judge