Opinion
BOARD Nos. 01134289, 07250591
Filed: March 20, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Maze-Rothstein).
APPEARANCES
Richard France, Pro Se.
Michael Landman, Esq., for the first injury insurer Dino Theodore, for the D.I.A. Trust Fund.
This is the employee's appeal from an administrative judge's decision awarding closed periods of compensation under G.L.c. 152, §§ 34 35 for incapacity caused by a work-related aggravation of a prior work injury. The judge dismissed the claim for further compensation against the first injury insurer. The judge found a second injury and ordered payment of benefits by the Workers' Compensation Trust Fund (W.C.T.F.) because Services Unlimited, the second injury employer, was uninsured. The amount of the benefit award was based on the employee's lower average weekly wage at the time of the second injury. Despite our concerns about the justice of the result, we affirm the decision as it is compelled by G.L.c. 152, § 1(1). Louis's Case, 424 Mass. 136 (1997). Although France may be able to pursue a further claim to remedy for his individual situation, general correction of the problem continues to await legislative action. See Id.
France, a service technician who repaired and installed overhead doors, suffered a left-hand fracture and severe crush and laceration when an overhead door fell on his hand in the course of his employment for Door Engineering Company. (Dec. 5, 8.) American Mutual Liability/Helmsman Management Company voluntarily commenced § 34 temporary total incapacity benefits. (Dec. 5.) The insurer then filed a discontinuance complaint. After a § 10A conference, a judge terminated the employee's § 34 benefits. (Dec. 5.) Neither party appealed the conference order. Id.
The first injury left France with a permanent significant weakness of grasp in his left minor hand, permanently impaired manipulative ability, and dullness of feeling over much of the dorsal side of the left hand. (Dec. 10.) As a result of the injury, France was unable to perform his previous job, installing and servicing overhead doors. (Dec. 10; Employee's Ex. 2, Millander Dep. Ex. 2, (Meagher Report.))
After his compensation benefits were terminated, France became a self-employed carpenter, landscaper and photographer's assistant. (Dec. 11.) In October 1990, he began working for Services Unlimited as a construction laborer, performing light carpentry and painting. (Dec. 5, 11.) He continued to do odd jobs. Id. France's hand symptoms began to increase over time after starting the Services Unlimited job. Id. On April 19, 1991, while climbing a ladder with his right hand and carrying a bundle of cedar shingles on his left shoulder supported by his left hand, France's left hand gave away. He stopped work at Services Unlimited and ceased doing odd jobs. (Dec. 5, 11.)
France's carpentry work for Services Unlimited aggravated the condition caused by his work-related hand fracture. As a result, France required a carpal tunnel release and tenosynovectomy on September 12, 1991 and was totally incapacitated. (Dec. 14, 16.) Within four to six weeks, France regained the ability to perform clerical or light work and indeed did find light employment in November 1991 as a courier delivering packages with an average weight of 10 pounds. In that job he earned approximately $250.00 per week. (Dec. 14.) By February 1992, France recovered sufficiently to do almost anything except use jackhammers and vibrating tools. (Dec. 15; Millander Dep. 24.)
France filed a claim for further compensation against American Mutual, the insurer on the risk for the original hand injury. After a § 10A conference, the judge denied the claim. (Dec. 5.) France then filed an original liability claim against Services Unlimited, his uninsured April 19, 1991 employer. (Dec. 5-6.) The judge allowed the employee's motion to join the W.C.T.F. in October 1992. (Dec. 6.) The parties waived further conference and France appealed to a hearing de novo.
At the § 11 hearing, France sought § 34 temporary total compensation from April 19, 1991 to November 27, 1992 and § 35 partial compensation from November 27, 1992 to the present and continuing. (Dec. 3.) The parties stipulated to a $427.10 average weekly wage at the time of the first injury with a § 34 compensation rate of $284.73 and a $204.63 average weekly wage on April 19, 1991.
France proved that he sustained a work-related disabling increase in symptoms on April 19, 1991 while employed by Services Unlimited. (Dec. 16.) Citing Trombetta's Case, 1 Mass. App. Ct. 102 (1973), the judge ruled that the insurer covering the risk at the time of the most recent injury was liable for the compensation due the employee. She therefore dismissed the claim for further compensation against American Mutual and awarded benefits based upon the April 19, 1991 average weekly wage of $204.63. (Dec. 16-18.) The judge ordered the W.C.T.F. to pay the employee § 35 partial compensation benefits from his last day of work at Services Unlimited until the date of surgery. The $23.09 partial compensation rate was calculated from his $204.63 average weekly wage and his partial earning capacity of $170.00 per week. For the surgical recovery period, September 12, 1991 to November 27, 1991, the judge ordered § 34 temporary total incapacity benefits in the amount of $136.42, based on the same average weekly wage. The judge found that thereafter France had a $250 earning capacity based upon his actual earnings as a courier. Because France was able to earn more than his second injury average weekly wage, the judge did not order continuing weekly compensation benefits.
France appeals pro se, arguing that his left hand is still partially impaired; he is worried about the future. Finding no legal error in the decision, we affirm it. G.L.c. 152, § 11C.
An employee's average weekly wage at the time of his first injury cannot be used to compute his average weekly wage at the time of a subsequent injury. Louis's Case, 424 Mass. at 139. Section 1(1) directs us to determine the average weekly wage by reference to the employee's earnings "during the period of the twelve calendar months immediately preceding" the injury. If an employee is receiving § 35 partial compensation benefits in that twelve month period, then those benefits may be added to his actual earnings in order to arrive at the average weekly wage. However, if an employee suffers a subsequent injury more than twelve months after exhausting his § 35 entitlement, those benefits are not a part of his earnings "during the period of twelve calendar months immediately preceding the date of injury" and cannot be included as a component of his average weekly wage. Louis's Case, 424 Mass. at 143.
France had not exhausted his § 35 benefit entitlement, but was not receiving such benefits during the twelve months prior to his second injury. In this proceeding, France did not claim further partial compensation for periods preceding the second injury. (Tr. 3; Employee Ex. 1.) Nor does the record compel a conclusion that he would be entitled.
France had been paid total compensation by the first injury insurer from March 9, 1989 to April 27, 1990 and had not received any § 35 partial compensation. Both of his injury dates preceded they 1991 amendments to § 35. Thus he could potentially receive partial compensation after April 27, 1990 and prior to April 19, 1991, based on two thirds of the difference between his average weekly wage before the first injury, $427.10, and the weekly wage he was capable of earning thereafter, G.L.c. 152, § 35, as amended by St. 1985, c. 572, §§ 44.
Weekly wage replacement benefits are paid not for personal injury as such but for incapacity for work. This concept combines two elements: physical injury or harm to the body, a medical element, and loss of earning capacity traceable to the physical injury, an economic element. Scheffler's Case, 419 Mass. 251, 256 (1994):
"The determination of loss of earning capacity involves more than a medical evaluation of the employee's physical impairment. Physical handicaps have a different impact on earning capacity in different individuals. Education, training, age, and experience affect the ability to cope with the physical effect of injury. The nature of the job, seniority status, the attitudes of personnel managers and insurance companies, the business prospects of the employer, and the strength or weakness of the economy also influence an injured employee's ability to hold a job or obtain a new position. The goal of disability adjudication is to make a realistic appraisal of the medical effect of a physical injury on the individual claimant and award compensation for the resulting impairment of earning capacity, discounting the effect of all other factors . . ." (footnotes omitted). L. Locke, Workmen's Compensation § 321, at 375-376 (2d ed. 1981). See also 1C A. Larson, Workmen's Compensation § 57-11, at 10-16 (1994 Supp. 1994) (discussing disability adjudication in similar manner).
Section 35D provides the method of calculating post-injury earning capacity. It requires the judge to use the greatest of the amount of the employee's actual earnings, § 35D(1), or the amount the employee is capable of earning with a reasonable use of all his faculties, mental and physical. § 35D(4). Section 35 then subtracts the employee's post-injury earning capacity from his pre-injury average weekly wage to determine the amount of partial compensation to which the employee is entitled. As France's partial incapacity preceding the second injury was not litigated, the issue is not precluded by the judge's decision. France is free to pursue such a claim if he has a good faith basis to do so. And if successful in establishing a right to partial compensation during the twelve months preceding the second injury, he may then claim a readjustment in his second injury compensation rate. See 452 Code Mass. Regs. 1.07(2)(a) (documentation required for recalculation of compensation).
For injuries occurring on or before December 23, 1991, the remainder is multiplied by two-thirds. For injuries thereafter, the remainder is multiplied by 60%. G.L.c. 152, § 35, as amended by St. 1991, c. 572, § 44, and as further amended by St. 1991, c. 398, § 63.
At a minimum, France appears entitled to ongoing reasonable and adequate medical and hospital care necessitated by his two injuries, G.L.c. 152, § 30, and benefits under G.L.c. 152, § 36, for causally related permanent impairment.
Although France may be able to increase his second injury average weekly wage in this fashion, the problem remains that many employees who utilize their post-injury limited work capacity by returning to suitable employment are unjustly penalized by benefits based upon a lower second injury average weekly wage. And many employers suffer from the higher insurance rates that flow from this disincentive to return to work. A more comprehensive solution will have to await legislative attention. Louis's Case, 424 Mass. at 143.
We note that for the second year in a row there is legislation pending to correct the problem. See 1997 Senate Bill No. 53 reported favorably out of the Commerce and Labor Committee.
Because of the state of the present law, we affirm the decision of the administrative judge terminating benefits. If the employee was incapacitated after his compensation was previously terminated and prior to his second injury, he may file a claim for further compensation against American Mutual, the first injury insurer. The unappealed conference order terminating benefits being paid by American Mutual does not preclude such a claim. G.L.c. 152, § 16;Payton v. Foster Forbes Glass Co., 11 Mass. Workers' Comp. Rep. ___ (December 23, 1997). The employee may also file a claim for further weekly compensation against the second injury insurer based on a Louis adjustment to his average weekly wage. Alternatively, he may file claims for periods subsequent to those litigated in this proceeding based on a deterioration in his medical or vocational condition. G.L.c. 152, § 16; see Foley's Case, 358 Mass. 230, 232-233 (1970) and McEwen's Case, 2 Mass. App. 63, 66-67 (1974).
So ordered.
_____________________ Suzanne E.K. Smith Administrative Law Judge
____________________ William A. McCarthy Administrative Law Judge
___________________ Susan Maze-Rothstein Administrative Law Judge FILED: March 20, 1998