Opinion
BOARD No. 02348394
Filed: November 23, 1998
REVIEWING BOARD DECISION
(Judges Smith, McCarthy and Wilson)
APPEARANCES
James J. Carrigan, Esq., for the Employee.
Thomas P. O'Reilly, Esq., for the Self-insurer at hearing.
Paul M. Moretti, Esq., for the Self-insurer on brief.
The employee appeals from a decision terminating his § 35 partial incapacity benefits. He contends that the law requires continuing compensation at varying rates based upon his actual earnings each week, and that the judge's findings about his ongoing disability and earning capacity are against the weight of the evidence. We find no merit in either contention. Because the judge's decision to terminate benefits is consistent with G.L.c. 152, §§ 35 and 35D and is adequately supported by subsidiary findings of fact that are grounded in the record evidence, we affirm it. G.L.c. 152, § 11C.
The employee, Francis Kelley, was fifty-three years old at the time of the hearing. General Electric had employed him for thirty-one years, most recently as a vertical turret lathe operator. In this capacity, Kelley utilized a lathe to fabricate and finish airplane engine parts weighing on the average between eight and ten pounds. (Dec. 3.) Kelley was paid on a piecework basis and regularly worked overtime when available. (Dec. 4.)
On June 28, 1994, Kelley received a contusion of his lateral left elbow arising out of and in the course of his employment for General Electric. (Dec. 3, 6.) The self-insurer accepted the claim and commenced payment of § 35 partial incapacity benefits at varying rates, based on the differential between his pre-injury average weekly wage of $1,339.73 and his fluctuating actual post-injury weekly earnings. (Dec. 3, 4.) Subsequently, the self-insurer filed this complaint to modify or discontinue compensation and the matter was conferenced before an administrative judge. The judge issued a conference order declining to authorize a reduction or modification of weekly benefits. Thereafter the self-insurer appealed to a hearing de novo. (Dec. 2.)
Pursuant to G.L.c. 152, § 11A, Kelley underwent an impartial medical examination. The impartial physician opined that Kelley had residual local synovitis, causally related to the left elbow contusion. Additionally, he opined that Kelley had an undisplaced fracture of the left radial head — but it was not causally related to the industrial injury. The doctor concluded that Kelley had a mild temporary disability resulting from the workplace injury that requires avoidance of strenuous pushing and lifting with the left hand with the elbow in extension. (Ex. 2, pVI; Dec. 6.) Neither party opted to depose the impartial medical examiner or requested that additional medical evidence be allowed. (Dec. 2-3.) The administrative judge adopted the doctor's medical opinions. (Dec. 6.)
The judge made further findings about how Kelley's work-related physical limitations affect his earning capacity. The limitations prevent Kelley from torquing the machine on which he works. As a result, Kelley requires assistance from coworkers to perform the lathing job and is unable to accept overtime assignments when such help is not available. Nevertheless, Kelley's post-injury earnings demonstrate no change in the pattern of his work pre- and post-injury. Kelly's wages fluctuated during both periods of time. The fluctuation in earnings was not always related to the number of hours worked. Kelley's regular wages fluctuated, as well as his overtime earnings. Between July 13, 1994 and July 10, 1997, there were weeks when Kelley worked overtime, but earned less than his pre-injury average weekly wage of $1339.73; and there were weeks when he earned significantly more. The factors which determined when any employee worked overtime included the production demand for a particular type of work, an employee's knowledge and skill for the required work, and an employee's place on the seniority list for overtime work. Kelley did not present evidence that his earnings were less in any particular week because his work-related medical condition deteriorated. The employer's production requirements have decreased since the injury. Since the injury, on occasion Kelley worked overtime but earned less than his average weekly wage; he did not present evidence that this earnings decrease was due to his medical condition. (Dec. 4-6.)
Kelley failed to persuade the judge that the fluctuation in his actual post-injury earnings was due to his injury, rather than to economic factors affecting General Electric. (Dec. 5-6.) The judge concluded, based on all the relevant evidence, that Kelley has the capacity to earn in excess of his pre-injury average weekly wage. (Dec. 5.) Accordingly, the administrative judge terminated Kelley's benefits effective July 16, 1997 — the date of hearing. (Dec. 7.)
The parties stipulated that the hearing date would be the effective date of any modification or termination of compensation. (Dec. 3.)
We find no reversible error in the judge's decision. We note preliminarily that the 1991 reforms of the workers' compensation act eliminated the reviewing board's fact-finding power. G.L.c. 152, § 11C as amended by St. 1991, c. 398, § 31. Contrary to the employee's assertion, the board no longer has the authority to "weigh evidence." DeCicco v. Hapwood Globe Retinning Corp., 11 Mass. Workers' Comp. Rep. 376, 377 (1997). The limited standard of review prescribed by § 11C gives us the authority merely to determine whether there is sufficient evidence, including all rational inferences therefrom, to support the facts found by the administrative judge. Marconi v. Crusader Paper Co., 10 Mass. Workers' Comp. Rep. 609, 611 (1996). Such evidence exists in this record.
Incapacity benefits are not awarded merely for a physical problem caused by work. In order to receive weekly benefits, the medical problem must reduce the employee's ability to earn his full wages.Scheffler's Case, 419 Mass. 251, 256 (1994). Kelley bore the burden of proving that his work-related injury rendered him unable to earn his former salary. Phillips's Case, 41 Mass. App. Ct. 612, 618 (1996). He failed to persuade the judge that this was fact. The judge's non-persuasion was rational in light of Kelley's post-injury work history that suggested that he was able to work more than full time and earn more than his pre-injury wages, and that his diminished earnings in any particular week were caused by economic factors unrelated to his injury.
The law does not require a continuation of Kelley's compensation payments at varying rates based upon his actual earnings, week by week. The judge's factual finding about the amount of Kelley's post-injury earning capacity was consistent with G.L.c. 152, § 35D. Section 35D instructs a judge how to determine the amount of money an employee is capable of earning post-injury. Section 35D requires a judge to use the greatest of either the employee's actual earnings during each week, § 35D(1), or the amount he "is capable of earning." § 35D(4). Subsection 4 of § 35D allowed the judge broad discretion in setting Kelley's earning capacity. Compare Sjoberg's Case, 394 Mass. 458, 460-463 (1985) with L. Nason and R. Wall, Massachusetts Workers' Compensation Reform Act, § 8.4 at 180-181 (West Supp. 1995). Based upon this record, we see no abuse of that discretion.
Having rationally set the post-injury earning capacity amount, the judge acted consistently with § 35 in denying the claim for partial compensation. Section 35 only provides for partial incapacity benefits when the pre-injury average weekly wage exceeds the amount of the post-injury earning capacity.
Section 35 provides, in pertinent part: "While the incapacity for work resulting from the injury is partial, during each week of incapacity the [self-]insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four. A[n self-]insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction."
The decision must stand because it is not tainted by error of law and is rationally supported by the record evidence. G.L.c. 152, § 11C. We affirm it.
So ordered.
_____________________ Suzanne E. K. Smith Administrative Law Judge
_____________________ William A. McCarthy Administrative Law Judge
_____________________ Sara Holmes Wilson Administrative Law Judge
FILED: November 23, 1998