Opinion
BOARD No. 000112-88
Filed: December 7, 1995
REVIEWING BOARD DECISION
(Judges Smith, Maze-Rothstein and Kirby)
APPEARANCES
Regina Kelly, Esq., for the employee
Richard McCue, Esq., for the insurer
The employee appeals from the decision of the administrative judge denying his claim for permanent and total incapacity benefits under G.L.c. 152, § 34A. The employee asserts that the administrative judge committed legal error in basing his denial of the employee's claim upon a finding that the employee's condition had not worsened. We agree. We reverse decision as it is contrary to law. G.L.c. 152, § 11C.
The employee, a 45 year old male, injured his back on August 10, 1982 while attempting to pick up a heavy wire. He has not returned to work since that date. (Dec. 4). The case was accepted and the employee received § 34 temporary total incapacity benefits of $242.00 weekly, plus a $30.00 dependency rate, based upon an average weekly wage of $363.00, from August 11, 1982 until the benefits were exhausted on December 13, 1987. On February 2, 1988 the employee filed a request for § 34A benefits from December 13, 1987 to date and continuing. A conference was held on July 9, 1990, and the administrative judge issued an Order of Denial of Payment of § 34A benefits. The employee appealed and a hearing was held August 29, 1990.
On March 9, 1992, the judge issued his decision denying § 34A benefits to the employee. In his decision, the judge "accept[ed] the medical deposition of Dr. McGillicuddy as being accurate and . . . accept[ed] the fact that the employee was totally disabled from any gainful employment, but his condition has not changed since the expiration of his § 34 benefits or gotten worse." (Dec. 7.) The judge, "[a]fter carefully weighing the testimony of the medical experts and recalling the employee's testimony and demeanor," found that "the employee failed to sustain the burden of proving a worsening of his condition since the expiration of his Section 34 benefits under the Act." (Dec. 8.) It is in this finding that we find error of law.
An employee who has received partial incapacity benefits under G.L.c. 152, § 35 and subsequently seeks permanent and total incapacity benefits under § 34A must prove a worsening of his condition. See Foley's Case, 358 Mass. 230 (1970). However, this is not the case in situations, as here, where the claim for § 34A arises after the employee has exhausted his § 34 temporary total benefits. Here the employee need not show a worsening but merely the continuation of a totally incapacitating condition that is not temporary or transient. The employee's condition need not be eternal, endless or lifelong. It is "permanent if it will continue for an indefinite period which is likely never to end, even though recovery at some remote or unknown time is possible." Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 111 (1939); Himmelman v. A.R. Green Sons, 9 Mass. Workers' Comp. Rep. 99, 101 (1995).
The judge found as a fact that the employee who had been receiving § 34 benefits for total incapacity was permanently and totally disabled from any gainful employment. Therefore, his denial of § 34A benefits for permanent and total incapacity was contrary to law. Because the facts as found by the judge can only support one result, we reverse and award rather than remand. G.L.c. 152, § 11C; see Medeiros v. San Toro Mfg., 7 Mass. Workers' Comp. Rep. 66, 68 (1993) (board reversed rather than remanded because the evidence, including all rational inferences which could be drawn therefrom, could support only one result). As the employee has not been paid, he is entitled to interest pursuant to G.L.c. 152, § 50 at the rate in effect when the board received notice of his claim, to wit: twelve per cent (12%).Thomas's Case, 25 Mass. App. Ct. 964, 965, 519 N.E.2d 786, rev. denied 402 Mass. 1103, 523 N.E.2d 267 (1988); G.L.c. 152, § 50 as appearing in St. 1982, c. 183, § 1.
So ordered.
______________________________ Administrative Law Judge Suzanne E.K. Smith
______________________________ Administrative Law Judge Edward P. Kirby
______________________________ Administrative Law Judge Susan Maze-Rothstein
Filed: December 7, 1995