Opinion
BOARD No. 045713-85
Filed: March 22, 1996
REVIEWING BOARD DECISION
APPEARANCES
Gregory F. Galvin, Esq. for the employee
Sheila S. Cunningham, Esq. for the insurer
In a hearing decision filed on December 23, 1993, an administrative judge awarded the employee temporary total benefits for a recurrence of incapacity in 1991-1992, causally related to a 1985 industrial accident. The employee appeals the judge's denial of his claim under § 35B for an assignment of an average weekly wage based on his earnings in 1991, rather than his 1985 average weekly wage. The employee also contends that the judge should have applied the provisions of § 51A to compute his benefits on the rate in effect on the day that the decision was filed. Finding error, we vacate the judge's assignment of the average weekly wage, and remand the case for further findings consistent with this opinion.
On August 5, 1985, the employee injured his left knee with a sledgehammer in the course of his employment. The employee was incapacitated for approximately six weeks, during which time he sought treatment and was diagnosed as having a contusion of the knee. The employee returned to work, but continued to experience pain in his knee and to require medical treatment consisting of physical therapy, cortisone shots and a neoprene brace. The employee did not treat from 1987 to 1990. In 1990, he experienced a worsening of his knee pain, attributable to no particular incident. (Dec. 7-10.)
On September 23, 1991, the employee underwent arthroscopic surgery on his knee and, as a result, was out of work for approximately eight weeks. His knee still bothered him in early 1992, and the employee lost a number of days from work from February through April. At the time of his original injury, the employee had a stipulated average weekly wage of $317.03. The employee testified that his average weekly wage on September 20, 1991, when he left work due to the recurrence, was approximately $850.00 to $900.00. (Dec. 6, 10.)
The employee filed a claim for incapacity and medical benefits arising from his 1991 knee surgery, which the employee alleged was causally related to his 1985 industrial accident. The employee also claimed that his average weekly wage should be calculated as of the date of his 1991 incapacity, pursuant to G.L.c. 152, § 35B. The claim was denied at conference, and the employee appealed to a hearing de novo, which took place on October 1, 1992. (Dec. 2, 5-6.)
General Laws c. 152, § 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 . . . ."
The employee's treating physician, Dr. James S. Broome, testified by deposition. The doctor opined that the employee suffered from a grade III chondromalacia patellae of the left knee, causally related to the 1985 industrial injury, which had progressively worsened. The doctor performed an arthroscopic examination of the employee's knee, and opined that the surgery resulted in only some symptomatic relief. The judge adopted Dr. Broome's opinion. (Dec. 11-14.)
The judge ultimately found that the employee had sustained a work-related injury on August 5, 1985, and that his arthroscopic surgery in September 1991, and periods of incapacity following that surgery, were causally related to the 1985 injury. (Dec. 14, 18-19.) The judge concluded, however, that the employee had "failed to meet his burden of proving that he is entitled to compensation benefits based on his 1991/1992 average weekly wage as required under § 35B." (Dec. 19.) The judge continued, "I find the employee failed to introduce evidence to corroborate his testimony regarding his average weekly wage for the years 1991/1992." (Dec. 19.) The judge therefore ordered payment of § 34 benefits, based on the stipulated $317.03 average weekly wage, as of the date of injury in 1985. (Dec. 20.)
The employee claims that the judge's determination of his average weekly wage was flawed in that the judge found a lack of evidence to corroborate the employee's testimony that his 1991 average weekly wage was approximately $850.00 to $900.00. We agree that rejecting the employee's alleged 1991 average weekly wage on that basis is error.
As a preliminary matter, we affirm the judge's construction of § 35B as directing that the employee be paid compensation at the weekly rate based on his average weekly wage at the time of his 1991 incapacity. We recently stated in Puleri v. Scheaffer Eaton Co., 10 Mass. Workers' Comp. Rep. ___ (January 25, 1996), that "rate" as used in § 35B includes the employee's compensation rate based on his average weekly wage at the time of his § 35B "subsequent injury," to the extent that it benefits the employee. Here the judge found all of the necessary components for the application of § 35B: an original injury for which the employee received compensation under the Act, a return to work for at least two months, and a "subsequent injury" resulting in another period of incapacity. Nonetheless, the judge denied the employee the benefit of his alleged average weekly wage at the time of the recurrence because she was not satisfied with the employee's proof of that 1991 average weekly wage. (Dec. 19.) It is, of course, "axiomatic that the amount of an employee's average weekly wage is a question of fact for the administrative judge." Wheeler v. Jean Alden Store, Inc., 6 Mass. Workers' Comp. Rep. 226 (1993). We may not substitute our judgment for that of the fact-finder. But the judge's second general finding under § 35B, that "the employee failed to introduce evidence to corroborate his testimony regarding his average weekly wage for the years 1991/1992[,]" gives us pause. (Dec. 19.) Insofar as the judge's denial of the employee's § 35B claim was based on this finding as a matter of law, it is erroneous. As we stated in Radke v. Eastham Foundations, 7 Mass. Workers' Comp. Rep. 197, 204 (1993), "the wage testified to by the employee constitutes an adequate evidentiary basis for the judge's award of the maximum compensation rate." The employee's § 35B claim for his higher average weekly wage at the time of the recurrence is not barred due to his failure to corroborate his testimony regarding his 1991 earnings. Since it appears likely that the judge based her conclusions regarding the application of § 35B on an errant legal proposition, we must vacate her finding on the employee's average weekly wage and § 35B, and remand the case for further findings regarding that issue. We offer no opinion as to the merits of the employee's claim for the alleged higher 1991 average weekly wage, but note that, although the employee's testimony on his wages is somewhat less than precise and comprehensive, it may be sufficient to calculate an average weekly wage.
"Subsequent injury," within the meaning of § 35B, has been construed "to mean a change in the employee's physical or mental condition," Don Francisco's Case, 14 Mass. App. Ct. 456, 461 (1982), or a "deterioration" in the employee's medical condition. Czarniak's Case, 14 Mass. App. Ct. 467, 468 (1982). When such a deterioration results in a new period of incapacity, either total or partial, the employee is entitled to compensation at the rate in effect on the date he is again incapacitated. See id.; Puleri, supra.
The employee next argues that the judge should have applied § 51A to award compensation as provided by § 34 on December 23, 1993, the date of the judge's decision. We agree with the employee that § 51A is self-operative, Arruda v. George E. Keith Co., 5 Mass. Workers' Comp. Rep. 14 (1991), and that the insurer's payment of compensation in 1985 does not constitute payment on the instant claim for benefits due to the recurrence in 1991. See Mugford v. Fluor Construction, 7 Mass. Workers' Comp. Rep. 190, 191-192 (1993); Spinosa v. Turner Bros. Construction Co., 9 Mass. Workers' Comp. Rep. 524 (1995). We cannot say there is error at this juncture because the judge's assignment of the average weekly wage at $317.03, notwithstanding the flawed rationale, precluded any potential impact that § 51A would have had on the employee's compensation. Section 51A applies only to statutory rates or statutory maximum levels of compensation. Bauman v. Faulkner Hospital, 8 Mass. Workers' Comp. Rep. 283, 285 (1994). At an average weekly wage of $317.03, the § 1(10) maximum weekly compensation rate is not applicable.
General Laws c. 152, § 51A provides:
"In any claim in which no compensation has been paid prior to the final decision on such claim, said final decision shall take into consideration the compensation provided by statute on the date of the decision, rather than the date of injury."
On remand, however, when the judge revisits the employee's average weekly wage as of September 1991, the judge may well find a higher average weekly wage. If the maximum weekly compensation rate then becomes an issue, the judge should apply the § 1(10) "rate" provided on the date of the final decision on remand. Although the issue has not been addressed previously, we see nothing that prevents the application of § 51A to award compensation at the statutory rates in effect on the date of decision, based on the average weekly wage at the time of the recurrence, the § 35B "subsequent injury." An apt analogy is the similar use of the § 35B "subsequent injury" date for § 34B COLA computations, when the employee chooses that later average weekly wage by way of § 35B. We approved of this construction in Puleri, supra, based on our reasoning in Downey v. Blue Cross Blue Shield, 7 Mass. Workers' Comp. Rep. 376, 381-382 (1993) (COLA must be calculated using multiplier that corresponds with date of decision when § 51A awarded, rather than date of injury).
The decision is vacated in part and recommitted for further findings consistent with this opinion.
So ordered.
________________________ Sara Holmes Wilson Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
_______________________ William A. McCarthy Administrative Law Judge
Filed: March 22, 1996