Summary
In Puleri, we traced legislative history and concluded that § 35B was intended to benefit employees by allowing them to increase their weekly and statutory maximum entitlements to the rates applicable at the time of a subsequent injury. Puleri, 17-19. Then in Kelly v. M.B.T.A., 10 Mass. Workers' Comp. Rep. ___, slip op. 7 (May 14, 1996), we held unequivocally that § 35B is an "exclusively employee-invoked section of the Act."
Summary of this case from Sullivan v. Liberty Mutual Ins. Co., NoOpinion
BOARD Nos. 028290-75, 085493-89
Filed: January 25, 1996
REVIEWING BOARD DECISION
(Judges Fischel, McCarthy and Wilson)
APPEARANCES
Catherine Campbell for the employee
John R. Cowie for the insurer
The insurer appeals from two decisions. In the first, filed January 21, 1993, an administrative judge awarded the employee weekly partial incapacity and medical benefits due to a recurrence of medical disability stemming from a 1975 work-related injury. The decision raises important questions with regard to § 35B, a section which allows, in certain circumstances, the employee to receive benefits at the "rate" in effect at the time of a recurrence of incapacity. We affirm the decision. In so doing, we determine that § 35B is to be applied for the benefit the employee.
In the second decision, filed April 6, 1994, a different administrative judge denied the insurer's complaint for discontinuance based on the application of G.L.c. 152, § 35E. We summarily affirm that decision.
I. January 21, 1993 Decision
Margaret Puleri worked for Sheaffer Eaton (the employer) since 1969 manually inserting wire spines into books of various sizes and weights. In 1975 she began experiencing pain and numbness in both hands. She was diagnosed as having bilateral carpal tunnel syndrome, and underwent surgery on her dominant left hand in 1977. The insurer accepted the case and paid weekly and medical benefits. Puleri returned to work after three or four months, but soon the pain returned. In 1978 the employee again underwent surgery on her left hand, and once again the insurer paid the employee benefits. The employee returned to the same repetitive motion job a few months later but when the symptoms returned she underwent a third surgery in 1982, this time on her right hand. Again the insurer paid workers' compensation benefits. In 1984, the employee underwent her fourth and final surgery, her third on her left hand, with the insurer paying benefits. (Dec. 3-4.)
Three to four months after returning once more to the same repetitive work, Ms. Puleri reported to her treating doctor that her symptoms had returned. (Insurer's Ex. A.) Nonetheless, she worked for the next few years, even though she had to take time off due to the worsening pain in her hands and wrists. (Dec. 5.) In June 1988, the employee was laid off and collected unemployment benefits until May 1989 when she began working part-time for her daughter at a day care center earning $100.00 per week. One year later, the employee stopped working as she was unable to perform all of her duties due to wrist pain and loss of grasping power. (Dec. 12.)
The employee then filed a claim for further benefits, alleging a date of injury of May 29, 1989, the date that her unemployment benefits ended. This time the insurer refused to pay benefits, and the claim was heard at conference by an administrative judge. The judge ordered payment of partial incapacity benefits from May 29, 1989 until June 29, 1990, when the employee stopped working at the day care center, and temporary total incapacity benefits thereafter. The insurer appealed and a hearing de novo, was conducted before a different administrative judge. The employee was allowed to amend her claim at hearing to reflect the original injury date of July 26, 1975. The insurer raised proper notice, the successive insurer rule, §§ 35B and 35E as defenses to the claim. (Dec. 2-3.) The insurer has waived its § 35E issue on appeal from this first decision.
The record does not indicate whether the employee sought medical treatment immediately upon the onset of her symptoms in 1975. (Tr. 16.) We therefore will refer to the original date of injury as being 1977, when the employee first lost work due to her industrial injury, despite the parties' stipulation.
One of the employee's treating physicians, Dr. Steven Silver, rendered the opinion, in evidence as Insurer's Ex. A and adopted by the judge, that the employee suffered from a mild permanent partial disability with respect to both hands, causally related to her repetitive work for the employer. (Dec. 6-7, 9.) Another treating physician, Dr. John Bouillon, testified by way of deposition. He reached a diagnosis on July 11, 1991, that the employee suffered from bilateral carpal tunnel syndrome, post operative carpal tunnel release and DeQuervain's Disease of the left wrist postoperative, all causally related to her work for the employer. The doctor also found cervical disc disease, unrelated to the employment, which had minimal impact on the employee's hand and wrist pain, as well as a non-contributory neuroma of the left wrist. The doctor opined that the employee could no longer perform the repetitive work that she had done for the employer. He also related the employee's present medical disability to the long term sequelae of the four carpal tunnel surgeries, including sensitivity due to scarring, loss of movement, atrophy of the thenar muscle and weak grasp. The doctor believed that these residuals were complicated by the employee's return to repetitive work and opined that the employee's present disability was a recurrence of the medical condition which began in 1975. (Dec. 7-9; Bouillon Depo. 28-29.)
The judge adopted Dr. Bouillon's opinion that the employee should not do repetitive work and that her condition was a recurrence of the original medical problem for which she had surgery in 1977, 1978, 1982 and 1984. (Dec. 9, 12.) The judge did not adopt the opinion of the insurer's expert, Dr. Kuhrt Wieneke, who found that the employee suffered from no present medical disability. (Dec. 7.) Instead the judge concluded that the employee's medical condition had deteriorated progressively from the original 1975 date of injury until her layoff in 1988, and continued to deteriorate thereafter. (Dec. 11-12.) The judge also found that the insurer had actual notice of the employee's injuries, and that her claim was filed within the statute of limitations. (Dec. 13.) He determined that the employee was partially incapacitated as a result of her causally related hand and wrist condition, and had an earning capacity of $200.00 per week. (Dec. 13.)
The judge concluded that the employee had returned to work for at least two months and her claim was governed by § 35B. He directed payment of weekly benefits of $158.75 under § 35. The weekly benefit was based on the employee's average weekly wage of $438.13 at the time of her layoff in 1988 and the assigned earning capacity of $200.00 per week. (Dec. 14.)
The insurer first argues that it is not liable for the employee's present incapacity because the employee suffered a new injury during the nine month period from August 29, 1987 until June 1988 when it did not insure the employer. It points to the successive insurer rule, as enunciated in EVAN'S Case, 299 Mass. 435 (1938), in which the court stated:
Where incapacity results from the combined effect of several and distinct personal injuries. . . . . . . [that] subsequent incapacity must be compensated by . . . the insurer [on the risk] at the time of the most recent injury that bore causal relation to the incapacity.
Id. at 436-437. The argument fails because the successive insurer rule does not apply in this case. The only personal injury here occurred in 1977, when the employee first lost work time as a result of the surgery. The judge found that the employee's present medical condition was arecurrence of her original carpal tunnel condition, not a personal injury under the Act. (Dec. 9) This finding is well supported by the expert medical testimony (Bouillon Depo. 28-29) and the lay testimony. There was no error.
Next the insurer argues that the employee's claim is barred by a prejudicial lack of notice. The insurer's argument again is premised on the theory of a successive personal injury that was not alleged, and which the judge found did not occur. (Dec. 9.) Since the judge found the employee's present disability related to the 1977 injury as a "recurrence," there can be no argument that the insurer did not have proper notice. As the court stated in Sulham's Case, 337 Mass. 586, 590 (1958),
Ancillary to this argument, the insurer argues that the judge's allowance of the employee's motion to amend her claim to reflect the date of the original 1975 injury, (which we think was properly designated as a 1977 injury) not the 1989 date on which her unemployment benefits terminated, was arbitrary and capricious. Our review of the record indicates no objection on the part of the insurer to that amendment, which fact the judge also noted. (Dec. 3.) Therefore, we do not address this issue, as it has not been preserved for our review.
[If] the claimant at the time of the [subsequent disability] was suffering solely from a recurrent [injury] without any new injury. . . . there was no obligation upon the claimant to give new notice or to file a new claim. Gibson's Case, 254 Mass. 460; Paglieranis's Case, 270 Mass. 368; Rock's Case, 323 Mass. 428.
Thus, there was no error in the judge's finding that the insurer had adequate notice of the employee's injuries, having "in fact paid compensation for them on various occasions through the years." (Dec. 9.)
Finally the insurer argues that the judge erred by using $438.13 as the employee's average weekly wage when applying § 35B. General Laws c. 152, § 35B (St. 1970, c. 667, § 1) states:
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 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; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.
At hearing, it was not the employee looking for increased weekly benefits who sought the application of § 35B. Instead it was the insurer who raised § 35B as a defense, apparently seeking to have the judge use the $100.00 earned weekly at her daughter's day care center in determining the "compensation . . . rate in effect at the time of the subsequent injury." (IR brief P. 12) Both the insurer and the judge assume that § 35B's use of the term, "rate," refers to the employee's weekly compensation rate based on her average weekly wage at some time other than the original 1977 injury date. We first look at whether this assumption is warranted.
A. How is Average Weekly Wage Calculated When Setting the "Rate" of Compensation Under § 35B?
The judge concluded that the employee, "having returned to work in excess of the statutory period of time [two months], falls under the provision of Section 35B and her average weekly wage at the time she was last employed [with the employer] was $438.13." (Dec. 14.) It is helpful first to assemble the components of § 35B as they apply to this case:
1. "An employee who has been receiving compensation under this chapter:" This employee received compensation for her work-related carpal tunnel injuries in 1977, 1978, 1982 and 1984 (Dec. 3-4);
2. "who has returned to work for a period of not less than two months:" The employee returned to work a few months after her 1984 surgery, and continued to work until 1988 (Dec. 4);
3. "if [s]he is subsequently injured and receives compensation:" A deterioration of her carpal tunnel condition occurred soon after her return to work and continued until she was laid off in 1988. This ultimately produced ongoing partial incapacity as a sequelae of her four surgeries (Dec. 5, 9, 11-13);
4. "shall . . . be paid such compensation at the rate in effect at the time of the subsequent injury:" The judge interpreted this clause to refer to the employee's compensation rate based on her average weekly wage in effect on the last day of the repetitive work that caused "the subsequent injury" (Dec. 14);
5. "whether or not such subsequent injury is determined to be a recurrence of the former injury:" This subsequent injury was a recurrence of the former 1977 carpal tunnel injury. (Dec. 9; see #3 above.)
It is crucial to remember that "subsequent injury" in § 35B is a term of art, which simply means 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 [her] physical or mental condition[.]"Czarniak's Case, 14 Mass. App. Ct. 467, 468 (1982). By the terms of the statute, a "subsequent injury" can be a "recurrence." It would appear, in fact, that the only logical application of § 35B can be for a "recurrence," since a new personal injury, although "subsequent," would clearly entitle the employee to compensation at the "rate" in effect on that date of injury, without the assistance of § 35B. See Beausoleil's Case, 321 Mass. 344, 347 (1947). In other words, a § 35B "subsequent injury" is not a "personal injury" under the Act, but instead is an occurrence causally related to the "old" or "former [personal] injury" under § 35B. See Zerofski's Case, 385 Mass. 590, 596 n. 7 (1982) ("subsequent injury" covers broader range of harm than "personal injury.")
The issue is whether the judge was correct in his applying the average weekly wage in effect at the time of the employee's "subsequent injury" in the calculation of the applicable weekly rate under § 35B? (See #4 above.) We think that he was.
We leave aside, for now, the insurer's contention that the employee's later part-time average weekly wage should be applied, and address that argument in Part B below.
In Barbaro v. Smith and Wesson, Inc., 9 Mass. Workers' Comp. Rep. ___ (November 21, 1995), we decided that an employee's rate of compensation, applicable by way of § 35B, is based on the weekly maximums and minimums, and the total aggregate maximum(s) payable for total and partial incapacity compensation under §§ 34 and 35 in effect on the first day of the new incapacity period. Id., slip op. at 8-9. See L. Locke, Workmen's Compensation § 302 (2d ed. 1981). We did not determine whether an employee's rate of compensation under § 35B could include her weekly compensation rate based on her average weekly wage at the time of the new period of incapacity.
The term, "rate," is ambiguous. In Barbaro we looked to the legislative history of § 35B to assist our interpretation of the term. Now we look at other uses of the term within the Act, in order to determine whether there is some underlying basis for the judge's understanding of "rate." See Van Beeck v. Sabine Towing Co., 300 U.S. 342, 351 (1937) (court construing statute may properly look for meaning in pattern of related statutes).
A quick search through the Act indicates that an interpretation of "rate" in § 35B as the employee's compensation rate based on her average weekly wage after returning to work for at least two months is supported by its use in other sections. "Rate" is not defined in § 1 of the Act. However, § 1(10) and (11) define, respectively, maximum and minimum weekly compensation rates, which expressions are repeated in §§ 10(6), 34 and 34A. These two definitions of rate express the outer boundaries of the weekly compensation available to an injured employee for total incapacity, and derive their meaning only by reference to average weekly wage. Other sections of the Act express just this meaning of "rate:" see §§ 8, 11D, 35D and, in a related manner, 69. Every other use of the term, "rate," in the Act occurs in entirely unrelated matters, such as insurance premium and assessment rates (§§ 7, 25E, 250, 53A, 65 and 65K), the insurance rating organization (§§ 52, 52C and 52D), rates of payment for medical services (§ 13), and interest rates (§§ 25C, 50 and 58). Therefore, to the extent that other sections of the Act indicate anything about an appropriate interpretation of "rate," they point to the compensation rate based on average weekly wage at the time of the new incapacity period. The judge's interpretation was certainly reasonable as far as this comparison goes.
§ 8, in pertinent part, states in ¶(2):
An insurer paying weekly compensation benefits shall not modify or discontinue such payments except in the following situations . . . (d)the insurer has possession of . . . (ii) a written report from the person employing said employee at the time of the injury indicating that such a suitable job is open and has been made available, and remains open to the employee; provided . . . that if such employee accepts said employment subsequent to a modification or termination pursuant to this paragraph, compensation shall be reinstated at the prior rate if the employee should cease work. . . . (Emphasis added.)
§ 11D, in pertinent part, states in ¶(2):
An insurer in receipt of an earning report indicating that overpayments have been made shall be entitled to recover such overpayments by unilateral reduction of weekly benefits, by no more than thirty percent per week, of any remaining compensation owed the employee; provided, however, that the reported earnings are of a kind that could have been considered in the computation of the employee's compensation rate. (Emphasis added.)
§ 35D, in pertinent part, states in ¶(5):
The fact that an employee has enrolled or is participating in a vocational rehabilitation program paid for by the insurer or the department shall not be used to support the contention that the employee's compensation rate should be decreased in any proceeding under this chapter. (Emphasis added.)
§ 69 presents a special case regarding injured employees of the state, county or municipalities, and allows for payment of compensation to such an employee who also receives "full maintenance in addition to his cash salary or wage,"
based upon his average weekly wages plus the sum of thirty dollars a week in lieu of the full maintenance received by him; provided, that . . . such maintenance, computed at the rate per week hereinbefore set forth, may be continued during total incapacity, in which event such weekly compensation shall be based solely upon the cash salary or wages of such employee. (Emphasis added.)
We next review our own decisions to see how we might have treated the § 35B "rate" in the past. Treatment of the issue in four of our decisions is consonant with the interpretation of "rate" as the employee's compensation rate based on her average weekly wage at the time of the new incapacity period. In 1988, we recommitted a case for further findings regarding the deterioration of the employee's medical condition and the application of § 35B. DeGrazia v. Brandeis University, 2 Mass. Workers' Comp. Rep. 45, 46-47 (1988). In that case, the judge had awarded benefits for subsequent periods of incapacity, each of which represented the compensation rate based on the employee's continually increasing average weekly wage. Id. at 46. These weekly compensation rates were not "maximum compensation rates," and therefore not within the Barbaro designation of the rates in the legislated benefit scales. See DeGrazia, supra (decision sets out actual amounts). In DeGrazia, we did not address the judge's use of the escalating average weekly wage in his application of § 35B to award "payment of benefits at a rate greater than the applicable rate when the employee [originally] injured his knee."Id. (Emphasis added.) Our silence on this issue at least indicates that we were not troubled by the practice.
Likewise we passed over in silence the judge's application of "the provisions of § 35B [footnote omitted] to the employee's claim in order to invoke his average weekly wage in 1984 . . . ($471.01) rather than his 1977 average weekly wage of $252.00 for purposes of computing his incapacity benefit." Arbogast v. McCord-Winn, Inc., 5 Mass. Workers' Comp. Rep. 189, 196 (1991) (Emphasis added.) See also, Farley v. Sears Roebuck, 5 Mass. Workers' Comp. Rep. 265, 266 (1991) where we said:
The transcript reflects a stipulation that the employee had an average weekly wage of $313.43 as of the date of injury, September 9, 1977. As of the last day worked [in 1988], his average weekly wage was $608.92. (Tr. 2) In order to use the latter wage to compute benefits, the judge must find facts which give rise to the application of § 35B. (Emphasis added.)
See also, Cooper v. Cooper Auto Body, Inc., 5 Mass. Workers' Comp. Rep. 21, 23, n. 1 (1991), in which we offered the following dicta:
Conceivably the higher average weekly wage [$650.00 from 1984 period of disability as opposed to $500.00 from the original January 15, 1981] could be correct if it were found that the employee returned to work for at least sixty days after his work-related heart attack in 1981, that his medical condition worsened, and that he was again forced out of work by his deteriorated medical condition. To reach this result, the provisions of § 35B would have to be applied.
Finally, in both Barbaro, supra, and Ottani v. Ottani Tree Service, 9 Mass. Workers' Comp Rep ___ (October 31, 1995), we let pass without comment the litigants' stipulation of the use of the employee's "subsequent injury" average weekly wage as the basis for determining the employee's § 35B "rate." While these cases are not dispositive as the issue was not presented for determination, they nevertheless point to a practice at the Board in which judges, litigants, and this reviewing board have been content with the use of the later, higher average weekly wage in fixing the § 35B "rate". See Cleary v. Cardullo's, Inc., 347 Mass. 337, 343-344 (1964) in which the Court stated:
Significance in interpretation may be given to a consistent, long continued administrative application of an ambiguous statute [citation omitted], especially if the interpretation is contemporaneous with the enactment. . . . [Citations omitted.] . . . The best proof, of course of a consistent administrative interpretation is the administrative body's regulations, or its published written decisions or interpretations.
Since the decisions of the reviewing board were not published around the time of § 35B's enactment in 1971, there is no record of "contemporaneous" interpretation. However, DiGrazia, supra, is only the fourth case in which this board construed § 35B, and its interpretation of "rate" is clear. The reviewing board cases handling § 35B issues prior toDiGrazia do not indicate whether the subsequent injury average weekly wage was used in computing the new rate. See Crespo v. Gemini Corp., 1 Mass. Workers' Comp. Rep. 32 (1987); McFadden v. Sears, Roebuck Co., 1 Mass. Workers' Comp. Rep. 267 (1987); Liaperdos v. Majestic Furniture, 1 Mass. Workers' Comp. Rep. 336 (1987).
[U]nder an ambiguous statute like § [35B], the details of legislative policy, not spelt out in the statute, may appropriately be determined, at least in the first instance, by an agency charged with the administration of the statute. (Emphasis added.)
See also, Wellington v. Commissioner of Corporations and Taxation, 359 Mass. 448, 452 (1971) ("Where, however, the language of a statute is vague or permits more than one reasonable interpretation, contemporary administrative construction, especially if long continued, is of significance.")
We are reminded of a bon mot offered by Brandeis, J., dissenting inBurnet v. Coronado Oil Gas Co., 285 U.S. 393, 406 (1932): "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right."
"'The principle is a familiar one that in the interpretation of a doubtful or ambiguous statute the long continued and uniform practice of the authorities charged with its administration is entitled to great weight and will not be disturbed except for cogent reasons.'" Power's Case, 275 Mass. 515, 518 (1931) quoting Louisville Nashville Railroad v. United States, 282 U.S. 740, 757. In Powers, Chief Justice Rugg based his forthright expansion of the Act's definition of "average weekly wage" to include tips on a 1914 Board case, Hatchman's Case, 2 Mass. Work. Comp. Cases, 419, 422 (in those earliest of times under the Act, the reviewing board's decision were published as they are now). The Court further stated, "Presumably that decision has been followed in the subsequent years by the board in the absence of any adjudication by this court." Powers,supra. Similarly, to the extent that there has been, at least, confusion as to the correct interpretation of the "rate" of compensation under § 35B, the holding of the lead case construing the section, Don Francisco's Case, 14 Mass. App. Ct. 456 (1982), certainly lends credence to what the judge did in the case at hand:
We hold that § 35B is a legislative remedy for the disparity which would otherwise exist between wages lost and compensation received in those situations where an employee returns to work but, because of a prior compensable injury, his ability to perform his duties changes while his compensation benefits remain the same.
Id. at 462. (Emphasis added.) It is a reasonable application of this holding, to use the average weekly wage at the time of the "subsequent injury," thereby filling the "disparity which would otherwise exist between wages lost and compensation received. We note, finally, that a restrictive interpretation of § 35B would militate against returning to the work force and would eviscerate the section's "beneficent design." Don Francisco, supra; Neff v. Commissioner of the Dep't of Indus. Accidents, 421 Mass. 70, 73 (1995). We choose to read § 35B consistently with other sections of the Act intended to assist employees to maintain the value of their benefits as against the ravages of inflation, §§ 34B, 35C, 51 and 51A. See Spinosa v. Turner Bros Constr. Co., 9 Mass. Workers' Comp Rep ___ (September 8, 1995), slip opinion at 5. We therefore elaborate on our construction of "compensation at the rate in effect at the time of the subsequent injury" in § 35B beyond that which we determined in Barbaro,supra, to include "rate [based on the average weekly wage] in effect at the time of the subsequent injury." We affirm and endorse the judge's application of § 35B to that effect in the instant case.
B. The Insurer Is Not Entitled to Use § 35B to the Detriment of the Employee
We now look at the insurer's contention that the employee's "subsequent injury" average weekly wage is not the $438.13 which the judge assigned. This was the amount that the employee earned per week as of the last day of work for the employer in 1988. (Dec. 8-10.) The insurer argues that the employee's compensation rate must be based on her $100.00 average weekly wage earned while working part-time at her daughter's day care center in 1989-1990, since this was what she earned when she "returned to work," pursuant to § 35B, after her period of unemployment. (Dec. 5-6.) We disagree with this argument for two reasons.
First, the judge made no finding that the work which the employee performed at the day care center contributed in any way to her present disability. The judge found, specifically and ultimately, that the employee was "partially disabled as a result of the condition of her hands and wrists and her condition [was] causally related to her employment at [the employer]." (Dec. 13.) There was no "subsequent injury" upon the employee's "return to work" at the day care center; the "subsequent injury," the recurrence of her 1977 carpal tunnel problems, occurred while working for the employer. The employee's rate of compensation must be based on her wages at the time she suffered the recurrence, not the last time she worked. Her wages at the day care center are consequential only on the issue of earning capacity.
The insurer's argument that § 35B may be used to reduce the employee's weekly rate must also be confronted. Was § 35B intended to be applied to the detriment of employees? Should insurers be allowed to invoke § 35B as a defense, i.e. to seek to apply a lower average weekly wage, where the employee does suffer a "subsequent injury" when she is working for less than at the time of her original industrial injury? We are convinced that using § 35B in such a manner would be to turn the statute on its head. We decline to do so.
In Barbaro v. Smith and Wesson, 9 Mass. Workers' Comp. Rep ___ (1995), we reviewed the historical context of the Legislature's passage of § 35B in 1970, citing excerpts from the first edition of Locke's Workmen's Compensation, published almost contemporaneously in 1968. At that time, the Legislature had to amend the Act whenever any change in the benefit scales needed to be made. Locke wrote:
Compare the current system of automatic increases in the state average weekly wage, see G.L.c. 152, § 1(10) and G.L.c. 151A, § 29(a).
The present system of compensation benefits has been criticized on several grounds: (1) Inadequacy,. . . . To limit payment during total incapacity to $58 or even $65 weekly [the weekly maximum as of 10/13/68] for an employee earning $8,000 to $15,000 a year renders compensation ineffective to replace his wage loss from employment-related disability. . . . (2) Obsolescence, particularly for employees whose injuries occurred before the current legislative amendments and who are restricted to the lower benefit scale.
Barbaro, supra, slip op. at 9, citing L. Locke, Workmen's Compensation § 302 (1968) (emphasis added). After the enactment of § 35B, Locke wrote, "In a further effort to overcome the obsolescence of the benefit scale, the legislature in 1970 provided [§ 35B]. . . ." Id. at 10, citing Locke, § 302 (2d. Ed. 1981). We must construe the statute "in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 3 (1987). At the time of its enactment, § 35B quite clearly was intended to address the problem of employees suffering a "subsequent injury" being stuck with a compensation rate which was economically relevant to an often remote date of the original injury. We think that, like § 51A, § 35B must be construed to benefit employees, not to disadvantage them. See Spinosa, supra.
General Laws c. 152, § 51A (St. 1969, c. 833, § 1) states:
In any claim in which no compensation has been paid prior to the final decision on such claim, said final decisions shall take into consideration compensation provided by statute on the date of the decision, rather than the date of the injury.
We find support for our interpretation of § 35B in Madariaga's Case, 19 Mass. App. Ct. 477 (1985). In that case, the Appeals Court analyzed, without deciding, the application of § 51A in a case where the subject § 36A benefits had been reduced between the date of injury and the date of the final decision. Id. at 482-483. The court first adopted language fromMcLeod's Case, 389 Mass. 431, 435 (1983):
"§ 51A reflects a legislative intent to avoid obsolescence of compensation rates by requiring benefits to be computed in accordance with the statutory rate in effect at the time of the final decision, when no payments have been made during the period the claim has been contested."
Id. at 483. The court continued:
We regard this statement as indication that the court (because of the facts with which it then was dealing) interpreted § 51A in the light of the general upward trend of compensation benefits and rates over the years. [Footnote omitted.] The Supreme Judicial Court has not yet decided whether it would reach the same result in a case involving less benefits at final decision than on the date of injury. There would be substantial basis for deciding that the Legislature did not intend that § 51A should have any application where benefits were reduced between injury and final decision.
Madariaga's Case at 483. (Emphasis added.) We feel that the same rationale applies to the application of § 35B. "Our construction of § 35B is consistent with the 'beneficent design' of the Act, Johnson's Case, 318 Mass. at 746, and in furtherance of its purpose, Ahmed's Case, 278 Mass. at 183." Don Francisco's Case, 14 Mass. App. Ct. at 462. See Neff, supra. Therefore, the insurer's argument that the employee is only entitled to use her part-time average weekly wage of $100.00 in computing her weekly compensation rate under § 35B fails because § 35B simply may not be applied to effect a reduction in the benefits that an employee otherwise would receive. To the contrary, the employee may use § 35B to increase her weekly and statutory maximum entitlements to the rates applicable at the time she suffered the recurrence.
Although we do not find it in the record, we assume that the employee's full time wage on the date of injury (her last day of work in 1977) was less than the $438.13 she was earning in 1988 when laid off. If by chance it isn't, she may use the average weekly wage as of the 1977 date of injury.
We note that for employees still eligible under § 35F (repealed by St. 1991 c. 398, § 67, which section was deemed substantive), COLA benefits will be calculated with the corresponding COLA multipliers operative on the date of the "subsequent injury" under § 35B. The same rule also will hold true for the application of § 34B to § 35B cases. See Downey v. Blue Cross and Blue Shield, 7 Mass. Worker's Comp Rep ___ 376, 382 (1993).
The judge's interpretation and application of § 35B was not "beyond the scope of his authority, arbitrary or capricious, or contrary to law." G.L.c. 152, § 11C. Thus we affirm the decision. The insurer is directed to pay employee counsel a fee of $1,000.00 under the provisions of § 13A (9).
II. April 6, 1994 Decision
The decision of the administrative judge is affirmed. The insurer is directed to pay employee counsel a fee of $1,000.00 under the provisions of § 13A(9).
_______________________ William A. McCarthy Administrative Law Judge
________________________ Carolynn N. Fischel Administrative Law Judge
________________________ Sara Holmes Wilson Administrative Law Judge
Filed: January 25, 1996