Opinion
BOARD NO. 7078-92
Filed: November 6, 1997
REVIEWING BOARD DECISION
(Judges McCarthy, Maze-Rothstein and Smith)
APPEARANCES
Mark W. Bixby, Esq., for the employee
Alec E. Cybulski, Esq., for the insurer
The insurer appeals on the single issue of whether the administrative judge's decision is contrary to law where she ordered the insurer to pay permanent and total incapacity compensation pursuant to G.L.c. 152, § 34A, as amended by St. 1991, c. 398, § 60, without requiring the exhaustion of benefits under both § 34 and § 35 as a precondition to any such award. We find that the judge did not err and affirm the decision in this case of first impression.
General Laws c. 152, § 34A, as amended by St. 1991, c. 398, § 60 provides:
While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of compensation provided in sections thirty-four and thirty-five, a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate.
(Emphasis added). This provision has been deemed substantive. It applies to injuries after December 23, 1991. St. 1991, c. 398, § 106.
A brief summary of the background of the case is as follows. The employee was a program coordinator, case manager, and educator at the Teen Pregnancy Prevention Program for the Family Planning Council of Western Massachusetts. (Dec. 4.) On January 23, 1992, while in the course of her employment, she fell on icy stairs as she was leaving work and sustained serious injuries. (Dec. 5.) Except for one unsuccessful attempt, the employee has been unable to return to work since that time. (Dec. 4.)
The insurer accepted liability and paid § 34 temporary total incapacity compensation through January 23, 1995 when those benefits expired. The employee then instituted a claim for § 34A benefits and requested payment of medical treatment for carpal tunnel syndrome. The claim was not accepted. Following a conference on May 30, 1995, the administrative judge ordered § 35 partial incapacity benefits with an earning capacity of $100.00 based on an average weekly wage of $332.72. (Dec. 2-3.) She further ordered payment of medicals to include a carpal tunnel release. The order for the carpal tunnel surgery was stayed in the event of an appeal. (Dec. 2.)
The insurer appealed to a hearing de novo. It raised the issues of disability and extent thereof, causal relationship, and whether the employee suffered from a carpal tunnel condition causally related to the industrial injury and whether surgery for it was reasonable and necessary. (Dec. 3.) The employee renewed her claim for § 34A benefits and for related §§ 13 and 30 medicals.
The judge issued her decision on March 21, 1996. She adopted the opinion of the § 11A examiner who examined the employee on July 25, 1995 and opined that the employee suffered from a cervical radiculopathy, secondary to spondylosis with root compression at C4-C5 and C5-C6 with a chronic low back syndrome, all causally related to the injury of January 23, 1992. (Dec. 6.) He further opined that Ms. Constant's neck, arm, and hand pain all originate from the cervical injury. Id. The doctor, however, did not think that she suffered from carpal tunnel syndrome nor would he recommend surgery. Id. He believed the employee was totally disabled from any work, because of pain and that without surgery, for which he had insufficient data to recommend, the employee's condition would remain static or worsen. (Dec. 6.)
The judge concluded that the employee was totally and permanently incapacitated from any gainful employment because of pain. (Dec. 8.) She awarded § 34A benefits from January 24, 1995 and §§ 13 and 30 medical benefits for the diagnosed condition. The judge, however, disallowed the claim for the proposed carpal tunnel surgery, finding that it was not reasonable and necessary as related to the diagnosed condition. (Dec. 9.)
The insurer appeals from this decision. It argues that the judge misconstrued the specific language of § 34A, as amended in 1991, and that under that revision, an employee must first receive the maximum entitlement under both § 34 and § 35 prior to receipt of § 34A benefits. It is undisputed that Ms. Constant exhausted her § 34 benefits on January 23, 1995, but has not exhausted the maximum provided under § 35.
It is established that if the language of a statute is clear and unambiguous it must be construed as written. Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 4 (1987). But it is equally well established that where a reading of the plain words of a statute achieves an irrational result, we must read the statute in a way to give it a sensible meaning. Beeler v. Downey, 387 Mass. 609, 616 (1982). Where there could be intolerable results in light of a statute's design, a more encompassing approach is necessary.Mailhot v. Travelers Ins. Co., 375 Mass. 342, 348 (1978). In large legislative enterprises there can be a lack of statutory precision. Mailhot, supra. Indeed, this has occurred most recently in the comprehensive changes to the Workers' Compensation Act by St. 1991, c. 398. See Neff v. Commissioner of Dept. of Indus. Accidents, 421 Mass. 70, 73 (1995) and cases cited; Murphy v. Commissioner of Indus. Accidents, 415 Mass. 218, 231, 233 (1993); see also Betances v. Consolidated Serv. Corp., 11 Mass. Workers' Comp. Rep. 65, 71 (1997) and cases cited (finding that the deletion of the language "minimum weekly compensation" rate in § 34, as amended by St. 1991, c. 398, § 59, was occasioned by an inadvertent legislative oversight while effectuating the complex and comprehensive changes found in St. 1991, c. 398).
In 1935, § 34A was enacted and compensation was first provided for those employees whose permanent and total incapacity prevented engagement "in any occupation and performing any work for compensation or profit, that is, from obtaining and retaining remunerative employment of any kind within [an] ability to perform." L. Locke, Workmen's Compensation § 301, at 345-346 (2d ed. 1981), quoting Frennier's Case, 318 Mass. 635, 639 (1945). Since that time, the benefit scales and the aggregate maximum payments for total and partial incapacity compensation under §§ 34 and 35 have been periodically revised. L. Locke, supra § 302, at 347. Section 34A itself has been amended approximately 20 times and several of these amendments have either added or deleted an exhaustion requirement. See Lazarczyk v. General Electric Co., 7 Mass. Workers' Comp. Rep. 170, 171-172 (1993). Between 1935 and 1945, an employee could be awarded § 34A benefits without exhaustion of either § 34 or § 35 benefits.
Section 34A provided as follows when it was first enacted:
At any time before or after an injured employee has received the maximum compensation to which he is or may be entitled under sections thirty-four and thirty-five, or either of them, such employee and the insurer may agree, or . . . the board may find, that the disability suffered by the injured employee is total and permanent.
(Emphasis added). St. 1935, c. 364
Section 34A was first amended by St. 1945, c. 717 to require exhaustion under either § 34 or § 35 before permanent and total benefits could be ordered, but application was allowed prior to exhaustion. This exhaustion requirement remained substantially in effect until 1985 when St. 1985, c. 572, § 43 deleted it.
Of course, if an employee were on § 35 partial incapacity benefits, he would have to show a "worsening" in order to qualify for § 34A benefits. Foley's Case, 358 Mass. 230, 263 (1970).
The 1945 amendment to § 34A provides:
While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of the maximum amount of compensation provided in sections thirty-four and thirty-five, or either or them . . . Application for payments under this section may be made by an injured employee before he has received the maximum compensation to which he is or may be entitled under the aforesaid sections.
(Emphasis added). St. 1945, c. 717. The "application" language was deleted in St. 1976, c. 474, § 12 and is applicable to injuries after October 1, 1978.
The 1985 amendment provides in pertinent part:
While the incapacity for work resulting from the injury is both permanent and total during each week of the incapacity, the insurer shall pay the injured employee compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate. St. 1985, c. 572, § 43.
The language of the 1991 amendment at issue is as follows: "while the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee,following payment of compensation provided in sections thirty-four and thirty-five . . ." See supra n. 1 (full text of § 34A, as amended in St. 1991, c. 398, § 60). The literal reading of this section provides for payment of compensation following §§ 34 and 35. There is no specific language regarding exhaustionper se. The problematic and somewhat ambiguous factor under the 1991 amendment is the word "and" leading the insurer to argue that we should insert a dual exhaustion requirement. To do this could only result in absurd and irrational results in many cases. For example, an employee who is in a permanent coma, with serious head injuries or catastrophic physical disabilities would be required to wait and receive all § 34 and all § 35 benefits before receipt of § 34A benefits. We do not think this could have been the intent of the 1991 Legislature given the "beneficent design" of G.L.c. 152.
Furthermore, a statute must be interpreted in "the context and examination of the statute as a whole . . ." Betances v. Consolidated Service Corp., 11 Mass. Workers. Comp. Rep. 65, 69 (1997), citing Meunier's Case, 319 Mass. 421, 423 (1946). We note that at no time since its enactment in 1935, did § 34A require both § 34 and § 35 to be exhausted. See e.g. L. Locke, Workmen's Compensation § 302, at 349 (2d ed. 1981) (tables).
Here, § 34 temporary total incapacity benefits were paid to exhaustion. We construe the 1991 amendment to § 34A as making no requirement that § 35 be paid or exhausted prior to an award of § 34A. The court has stated that in large legislative enterprises or overhaul, there can be classic examples of imperfect drafting or legislative oversight which if construed improperly could result in deprivation of long established benefits or in inequities.Arbogast v. Employers Ins. Of Wausau, 26 Mass. App. Ct. 719, 722 (1988). We consider that to be the case here. See Betances, supra at 69-71; Puleri v. Sheaffer Eaton, 10 Mass. Workers Comp. Rep. 31, 42 (1996).
Given the facts at hand, we need not reach the issue of entitlement to § 34A where neither § 34 nor § 35 is paid to the statutory maximum.
The outcome we reach can also be arrived at from a different direction, i.e. "[t]here is ample precedent for construing the word 'and' disjunctively in order to further a recognized legislative purpose." Somerset v. Dighton Water District, 347 Mass. 738, 742-743 (1964); Massachusetts Association of Cosmetology Schools, Inc. v. Board of Registration in Cosmetology, 40 Mass. App. Ct. 706, 712 (1996).
Accordingly, we affirm the decision of the administrative judge awarding § 34A benefits before § 35 benefits were paid, finding no such requirement in the statute.
So ordered.
______________________________ William A. McCarthy Administrative Law Judge
______________________________ Susan Maze-Rothstein Administrative Law Judge
______________________________ Suzanne E. K. Smith Administrative Law Judge
Filed: November 6, 1997