Opinion
BOARD No. 07424990
Filed: April 11, 1996
REVIEWING BOARD DECISION (Judges Fischel, McCarthy and Wilson)
APPEARANCES
Nora Z. Tolins, Esq., for the employee
Jean M. Shea, Esq., for the insurer
The employee appeals from the decision of the administrative judge awarding a closed period of benefits through February 12, 1991, stopping benefits on the date the employee underwent surgery. Because we find inconsistencies in the decision, we affirm in part, reverse in part and recommit for further findings.
Maria Puopolo was employed as a secretary. She answered the telephone and took messages for four supervisors, did word processing for twenty-five people and bulk copying. (Dec. 4, Tr. 6, 7.) Compensation was sought based on those repetitive activities, and as a result of an incident on June 28, 1990. On that date, after leaving work, she walked to her car which was parked in the employer-owned parking lot carrying a bag containing sneakers and a book. (Dec. 4.) As she threw the bag into the front seat of the car she alleged she felt a "ripping" in her right wrist followed by pain. (Dec. 4.) She sought medical treatment that evening (Dec. 4.) but continued to work in her usual position until November 15, 1990. She underwent wrist surgery on February 12, 1991 and on December 20, 1991. (Dec. 6.)
On February 12, 1991 the employee underwent surgery on her right wrist for carpal tunnel release, resection of the lumbrical muscle, flexor tenosynovectomy and excision of a dorsal wrist ganglion. (Employee's Brief, p. 6.) When her recovery was not satisfactory, the employee had additional surgery on December 20, 1991 to remove scar tissue which had formed at the site of the initial surgery. (Dec. 6.)
The employee filed a claim for § 34 temporary total incapacity benefits from November 15, 1990 to date and continuing and medical benefits. The insurer initially denied the claim. A conference was held and an order for § 34 benefits from November 16, 1990 to May 22, 1991 plus medical benefits pursuant to § 30 was issued. Both parties appealed the order and a hearing de novo was held in front of the same administrative judge.
Following the hearing the administrative judge issued a decision in which she concluded that the employee had not suffered an injury arising out of and in the course of her employment on June 28, 1990. The judge awarded § 34 benefits from November 16, 1990 to February 12, 1991 for aggravation of a preexisting congenital condition caused by the employee's prolonged use of a keyboard in her job as a secretary. (Dec. 8.) The judge awarded medical benefits pursuant to §§ 13 and 30 for the same closed period, specifically denying such benefits for the wrist surgery on February 12, 1991, or medical care thereafter. (Dec. 9.) In addition, the administrative judge allowed the insurer to take credit for sick pay totalling approximately $6100.00 received by the employee from November 17, 1990 to February 9, 1991. (Dec. 9.) She denied any award of a legal fee or costs to the employee's attorney. (Dec. 9.)
The employee appealed. The employee agrees with the judge's finding that her work activities as a secretary aggravated her preexisting wrist condition based on the standard enunciated in Long's Case, 337 Mass. 517 (1958). The finding is supported by expert opinion. There is no error in the finding that aggravation of the employee's preexisting condition is compensable under the Act. Naylor v. Consolidated Freightways, 6 Mass. Workers' Comp. Rep. 144, 145 (1992); Cornell v.M.B.T.A., 4 Mass. Workers' Comp. Rep. 26 (1990).
In reaching this conclusion the judge, by inference, has found the activity not common to all or at least a great many occupations. In any event, there is no insurer appeal.
The record reflects that those medical experts who had opinions agreed that her repetitious typing bore causal relation to her wrist condition. Dr. Stephen Meagher opined that "the type of activity performed by the employee very definitely aggravated the employee's condition." (Meagher Dep. 9.) Dr. Lewis Millender, testifying for the insurer, agreed with Dr. Meagher that the employee's dorsal wrist ganglion was worsened by the typing activity performed by the employee. He stated that the typing and other repetitive wrist activities which the employee was performing aggravated and bore some causal relation to the carpal tunnel syndrome. (Millender Dep. 25-27.) Dr. Millender stated that the employee's first surgery was work related and that "there is no question that the second surgery is a direct consequence of the first surgery." (Millender Dep. 27-28.) There is no indication in the record of any § 11A exam, and we thus infer that the parties "opted out" pursuant to 452 CMR 1.10 (7), 1.11 (1)(c).
The employee argues that the judge erred in terminating benefits as of February 12, 1991. She argues that her incapacity continued beyond the closed period awarded by the judge, and that having found an aggravation of the employee's preexisting condition, the administrative judge needed to rely on medical evidence to support the finding that the effects of the aggravation had ceased. The employee argues that the medical evidence was uncontradicted that the aggravation of her wrist condition at work bore a causal relationship to the need for wrist surgery. (see footnote 2)
The issue of whether an employee remains medically disabled must be resolved through expert medical evidence. See Mastrangelo v. Ametek Aerospace, 7 Mass. Workers' Comp. Rep. 184, 187 (1993). We note that in finding that the resulting incapacity ceased by February 12, 1991, and that the employee's condition thereafter was the result of the surgery for her congenital condition, the judge referenced no expert opinion. Any date chosen for the termination or reduction of benefits must be grounded in the evidence. Bursaw v. B.P. Oil Company, 8 Mass. Workers' Comp. Rep. 176, 179 (1994). We find no medical or vocational event corresponding to the termination date chosen by the judge. Since the finding of cessation of incapacity as of just prior to the surgery lacks an adequate evidentiary foundation it is arbitrary. We vacate the finding.
As a second basis of appeal, the employee alleges that she sustained a personal injury to her wrist when she tossed a bag of personal belongings into her automobile parked on the employer's premises on June 28, 1990. The administrative judge recognized that an injury in the employer's parking lot could be covered under the Act, but deemed the risk of wrist injury from the throwing of the bag not incidental to her employment.
The employee testified that a pair of sneakers and a book contained in the bag bore a relation to her employment in that she carried a change of shoes to work. (Tr. 23.) She also testified that these items had nothing to do with her work. (Tr. 23-24.)
The administrative judge on the one hand appeared to question whether an event occurred on June 28, 1990, and on the other, appeared to conclude that "the bag throwing incident produced only a transitory episode of pain" not causally related to her surgery or incapacity. (Dec. 7.) While there is ambiguity as to whether or not the administrative judge found the bag throwing incident to have happened, what is clear is that she found such an incident would not be incidental to or connected with the employment. (Dec. 8.)
The judge found highly significant that there was no mention of the bag throwing incident in the Lawrence Memorial Hospital Emergency Room Record, no report of the incident to the employer and no timely retelling of the incident to her own doctor. (Dec. 7.)
Reasonable acts of personal comfort can be incidents of employment. See Von Ette's Case, 223 Mass. 56 (1916); Chouinard's Case, 325 Mass. 152 (1949). The administrative judge concluded on these facts that the items were personal in nature and not incidental to the employment. When presented with conflicting evidence it is within the fact finder's discretion to determine which evidence is most believable. See Lettich's Case, 403 Mass. 389 (1988). The judge did not abuse her discretion in finding that the items were not incidental to the employment.
The employee also appeals the judge's finding, pursuant to G.L.c. 152, § 29 as amended by c. 398 of the Acts of 1991, that the insurer may credit itself for approximately $6100 received by the employee from the employer as sick pay for the period of November 17, 1990 to February 9, 1991. First, the employee argues that the amendment to § 29 does not apply to this case because it was expressly deemed substantive by § 106 of chapter 398 of the Acts of 1991. As such, it is to be applied only to injuries occurring on or after December 23, 1991. We agree but note that this does not resolve the issue since the pertinent words were also contained in the pre-1991 version of § 29.
G.L.c. 152, § 29 was amended by § 52 of c. 398 of the Acts of 1991, and states, in pertinent part:
Except as otherwise provided in this chapter, no compensation shall be paid for any period for which any wages were earned.
Section 106 of c. 398 of the Acts of 1991 states, in pertinent part:
. . . section fifty-two . . . shall be deemed to be substantive in character.
G.L.c. 152, § 29, as amended by St. 1987, c. 691, § 11, in effect on all dates germane to this claim stated, in pertinent part:
. . . If incapacity extends for a period of five days or more, compensation shall be paid from the date of injury; provided, however, that, except as otherwise provided in this chapter no compensation shall be paid for any period for which any wages were earned. . . .
The employee argues that receipt of sick pay benefits has no bearing on the insurer's obligation to pay compensation benefits. It is argued that in circumstances where an insurer has declined to accept liability for a work injury, the employee who has become incapacitated for work often has no recourse other than sick pay to provide subsistence during the period of inability to work. Although an employee may believe she has sustained a compensable injury, she may be obliged to turn to sick pay to survive. Even when an employer agrees that the employee's incapacity is work related, an insurer may decline to voluntarily pay compensation. The question then is whether, once such sick pay benefits have been received, an insurer is relieved of its obligation to pay compensation for what would otherwise have been a compensable injury.
We agree with the employee that the compensation insurer's obligation to pay benefits is primary. Where compliance with the requirement of coverage is compulsory for employers, G.L.c. 152, § 25A, employers self-insure or pay premiums to insurance companies who, in accepting the premium, bind themselves to make payment of workers' compensation when an employee in covered employment is incapacitated by industrial injury.
That the obligation of the compensation carrier to pay workers' compensation is primary is also the rule under the workers' compensation laws that cover policemen and firemen. G.L.c. 41, § 111F. When construing a statute the court may properly look for the meaning in a pattern of related statutes. See Van Beeck v. Sabine Towing, 300 U.S. 342, 351 (1937). Chapter 41, § 111F has been subjected to judicial interpretation. In Pettinella v. Worcester, 355 Mass. 412 (1969) the plaintiff, a police officer incapacitated by a work injury, sued his employer when he discovered that he was being compensated during his period of incapacity by deductions in his sick leave rather than injury leave. The Supreme Judicial Court determined that Pettinella was entitled to statutory compensation benefits during the period of his incapacity and that the records of his sick leave need be restored. That position was reaffirmed in Carvahlo v. Cambridge, 372 Mass. 464 (1977) where the court found nothing in the statute authorized changing injury leave to vacation leave. Id. at 465.
In analyzing whether § 29 was intended to create a bar to the receipt of compensation benefits whenever an employee was paid sick pay benefits, we note first of all that § 29 includes the phrase "[e]xcept as otherwise provided in this chapter." In so referencing other provisions of the chapter, § 29 by its own language directs that its provisions not be construed in isolation. We look therefore to other sections of c. 152, consistent with the principle that sections of the act be "construed in harmony with the purposes of the act." Mizrahi's Case, 320 Mass. 733, 738 (1947).
Section 38 of the act prohibits consideration of benefits from sources other than the insurer. In analyzing § 38 in Mizrahi's Case,supra, the court made clear that the language of § 38 included sick pay benefits:
G.L.c. 152, § 38 states:
Except as expressly provided elsewhere in this chapter, no savings or insurance of the injured employee independent of this chapter shall be considered in determining compensation payable thereunder, nor shall benefits derived from any other source than the insurer be considered in such determination.
Amended by St. 1986, c. 662, § 33.
This section was designed to make sure that the employee would not lose the full advantage of any savings or insurance of his own and of any sick benefits or other benefits to which he might be entitled. . . .Id. at 737 (emphasis added). Sick pay benefits are paid by the employer, not the insurer, and being derived from a source other than the insurer, cannot be considered in determining compensation. Id. The legislature did not repeal § 38 when it enacted § 29.
In Seymour's Case, 6 Mass. App. Ct. 935, 936 (1978) (rescript op.) the court relied upon § 38 in holding that denial of the employee's claim because the employee continued to be paid "salary" during prior periods of alleged incapacity was wrong, based on evidence that the payments were not made in exchange for services rendered. The court appears to have drawn a distinction between earned wages and unearned wages, clarifying that payment of workers' compensation benefits was not barred where the wages were not paid for work performed. See also Federico's Case, 283 Mass. 430, 432-433 (1933). The court in Seymour, supra, also referenced § 612 of Locke's treatise on Workmen's Compensation, which states:
An employer may continue to pay wages to an injured employee or make other payments to him during the period of his disability. If these payments are not earned by services rendered during the period of claimed disability . . . the insurer's obligation to pay compensation is not impaired, and the payments made may not be deducted from the award . . . [T]o the extent they are unearned, they are not a credit against compensation payable by the insurer.
Locke, Workmen's Compensation, § 612, at 734-735 (2d ed. 1981).
Sick pay benefits are not paid to an employee for performance of a day's work. Sick pay benefits are paid pursuant to a contractual relationship between the employee and the employer. We think they are analogous to the payments in Seymour's Case, supra, "unearned", and thus no bar to the receipt of compensation.
We find instructive the case of Graham v. Boston School Committee, 9 Mass. Workers' Comp. Rep. 287 (1995). In that matter the employer, a self-insurer, initially paid the employee sick pay for her time out of work. Thereafter the employer recast the lost time as workers' compensation, recouped the sick pay and credited the employee's sick pay account. In Graham, as in this case, the appropriate procedure is for the insurer to pay any workers' compensation due, and for the employer, assuming the employment contract permits, to recover any sums paid as sick time from the employee and recredit the employee's sick time accordingly. This ensures that the employee does not collect both sick pay and compensation benefits for the same period of time, thereby avoiding any double recovery. See Hunter v. Midwest Coast Transport, Inc., 400 Mass. 779 (1987). The restoration of sick pay credits also protects the employment relationship once the employee is able to return to work, by reinstating the reserve of sick time that the employee may resort to in the event of future illness, thus keeping the employee on the payroll longer.
This is sound public policy, since relieving the insurer of its contractual obligation to pay compensation because monies were paid by another source would discourage voluntary payment of claims, thus forcing injured workers to draw on their sick time, creating a windfall for the insurer. It would be inconsistent with the policy that the burden of industrial injury be borne by the system established to compensate employee's for work injury. See Mizrahi's Case, supra.
There are other sections of c. 152 which bear on the question of whether because of receipt of sick pay an employee must waive the right to compensation. We note that § 46 prohibits the waiver of compensation rights. If the insurer were relieved of its obligation to pay compensation for a work injury because the employee was forced to use sick time during the pendency of a liability contest, accepting sick pay would amount to a waiver, prohibited by § 46. Moreover, the provisions of § 24 are strictly construed against any waiver. Young v. Duncan, 218 Mass. 346 (1914), Locke, supra, § 123 at 126.
General Laws c. 152, § 46 states in pertinent part, "No agreement by any employee to waive his right to compensation shall be valid."
Amended by St. 1991, c. 398, § 73.
In view of the statutory provisions which militate against any waiver of compensation and the § 38 prohibition against consideration of sick pay benefits in such determination, Mizrahi's Case, supra, we rely on the legislature's use in § 29 of the phrase "wages . . . earned", and clarify here, consistent with the distinction drawn in Seymour's Case, supra, that the § 29 prohibition does not apply to receipt of sick pay, which are "unearned wages." For all the reasons indicated, we reverse the judge's findings as to allowing credit to the insurer for sick pay received from the employer.
It is not mentioned in the record but we assume that the employee, pursuant to the terms pertaining to receipt of sick pay in any employment contract, must return some or all of the sick pay he has received.
Finally, the employee appeals because legal fees and expenses were denied by the administrative judge. General Laws c. 152, § 13A(5) in effect at the time of the hearing provided, in pertinent part:
Whenever an insurer . . . contests a claim for benefits and . . . the employee prevails at . . . [a] hearing [pursuant to section eleven] the insurer shall pay a fee to the employee's attorney in an amount equal to three thousand five hundred dollars plus necessary expenses. . . .
Both parties appealed the conference order and the insurer contested liability at the hearing. As a matter of law the employee prevailed at the hearing for purposes of an award of attorney's fee.
That part of the hearing decision establishing liability for a right wrist injury due to repetitive work activities through November 15, 1990 is hereby affirmed. The denial of medical and incapacity benefits as of February 12, 1991 is hereby vacated. The employee's attorney is awarded a fee of three thousand five hundred dollars for her work in prevailing at the hearing. The order of the judge allowing the insurer to take credit for approximately $6100.00 paid as sick pay is vacated. The case is recommitted to the hearing judge for findings grounded in the evidence as to when incapacity ceased and for evaluation of vocational factors pursuant toScheffler's Case, 419 Mass. 251 (1994), and Frennier's Case, 318 Mass. 635 (1945).
So ordered.
___________________________________ Carolynn N. Fischel Administrative Law Judge
___________________________________ William A. McCarthy Administrative Law Judge
___________________________________ Sara H. Wilson Administrative Law Judge
Filed: April 11, 1996