Opinion
BOARD No. 06429092
Filed: May 16, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, Kirby and Smith)
APPEARANCES
James N. Ellis, Jr., Esq., for the employee
John J. Dumphy, Esq., for the insurer
By age forty, the employee, Michael Smith had a high school diploma and training as a mechanic obtained during military service. From 1988 onward, he worked for the employer, American Tissue Mills as a paper towel making machine operator. On January 23, 1992 he ran to attend to a malfunctioning machine. In so doing, he took a spill on some wayward hydraulic oil and landed face first on the cement floor. After lying motionless for nearly half a minute, he arose groggy and disoriented. This event marked the commencement of profound behavioral changes observed by his supervisor and co-workers. (Dec. 1-4.)
The employee continued to work, but his once exemplary performance faltered due to mood swings and forgetfulness. In June 1992 during a plant shut down, he was ultimately laid off. He received unemployment benefits for a period of time and briefly worked for his brother out of state. (Dec. 4-5.)
The insurer set against the claim for weekly compensation and medical benefits that was subsequently filed. The employee's claim went to a § 10A conference and met with the judge's denial. Aggrieved, the employee appealed to a full evidentiary hearing de novo. Agreeing, at conference, that liability had not been established, the parties opted out of the G.L.c. 152, § 11A medical procedures. 452 Code Mass. Regs. 1.10 (7). (Dec. 2.) Consequently, each party submitted its own medical expertise at the time of the hearing. Id.
General Laws c. 152, § 11A gives a solitary statutorily derived medical report the effect of "prima facie evidence with regard to medical issues contained therein," and prohibits introduction of all other material medical evidence to rebut it, unless the judge finds that additional medical evidence is required due to the complexity of the medical issues or the inadequacy of the report.O'Brien v. Blue Cross/Blue Shield, 9 Mass. Workers' Comp. Rep. 16 (1995), appeal docketed, No. 07058 (SJC October 30, 1995).
The regulation reads in pertinent part:
"In claims where initial liability has not been established, . . ., the parties may agree in writing at the time of the conference that an impartial physician is not required."
Among the opposing experts there was a near concert of medical opinion that the physical insult to the employee's brain occasioned by the fall at work had caused a cognitive, mood and depressive disorder. (Dec. 5-8.) They differed only on the extent to which the medical disability affected the employee's ability to work. Id. The judge found the insurer liable for the work injury and adopted the medical opinions that the injury resulted in a residual partial medical impairment. Then, combining that medical status with the employee's vocational profile, the judge awarded him § 35 partial incapacity benefits on a continuing basis from the injury date, January 23, 1992. No one quarrels with any of this. Instead, we have the employee's appeal on the limited issue arising from the judge's order that:
The decision reads: "June 23, 1992." (Dec. 12.) We assume this is a clerical error because the issue of original liability was determined by this decision and because no benefits had been theretofore paid.
. . . for any week since [January] 23, 1992 during which the employee received unemployment benefits, the insurer shall credit the amount of those unemployment benefits toward the . . . § 35 which it has been ordered to pay for that particular week.
(Dec. 12.)
On appeal the employee asserts, that although this order follows the literal interpretation of the statute governing treatment of unemployment benefits received during a period of partial incapacity compensable under the Act, the statutory provision is unconstitutional because, for no rational reason, it treats injured workers with a partial incapacity differentially. (Employee's brief 4-7). That is, injured workers who are partially incapacitated and who can find work within their earning capacity, receive both a weekly benefit and the wages earned. Yet partially incapacitated employees, who can not find work, have their workers' compensation weekly benefits reduced by the amount of unemployment benefit received. Id. The employee urges a constitutional interpretation of the statute would treat unemployment benefits as the earning capacity amount, just as wages earned are considered for partially incapacitated workers. Id.
We note that the record is silent on the employee's compliance with Mass. R. Civ. P. 24 (d), which requires that a party asserting the unconstitutionality of an act of the Legislature "shall notify the attorney general within sufficient time to afford him an opportunity to intervene." Id.
Of relevance, G.L.c. 152, § 36B, entitled Unemployment Compensation Benefits; Eligibility, reads:
(2) Any employee claiming or receiving benefits under section thirty-five who may be entitled to unemployment compensation benefits shall upon written request from the insurer apply for such benefits. Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under said section thirty-five. Any unemployment compensation benefits received shall be credited against partial disability benefits payable for the same time period, or, if for a period of time for which partial disability benefits have already been paid, shall be credited against any future partial disability benefits which are or may become payable. (Emphasis added).
Added by St. 1985, c. 572, § 47A.
In considering the constitutionality of economic legislation under the equal protection clause, absent a showing that the statute burdens a suspect group or fundamental right, courts confine their determination to whether the classification involved furthers a legitimate state purpose.Dickerson v. Attorney General, 396 Mass. 740, 743 (1986);Commonwealth v. Henry's Drywall Co. Inc., 366 Mass. 539, 543-544 (1974); McGowan v. Maryland, 366 U.S. 420, 425 (1961). As we discussed in O'Brien, supra, as an administrative appellate body, we view our role in addressing properly framed constitutional issues as follows: 1) we take up the issue; 2) we analyze it in the context of the case presented; and 3) if we find an unavoidable constitutional question as to the provision's validity, we so indicate. Id. at 24-25 and cases cited.
The stance against double recovery was early voiced inMizrahi's Case, 320 Mass. 733 (1947), when an employee sought two awards of total incapacity benefits for the same period of total incapacity, one from the federal Longshoremen's and Harborworkers' Compensation Act and one from the state Workers' Compensation Act. The court reasoned:
All compensation acts rest upon the policy that industry should bear the burden of industrial accidents, but there is no policy that justifies placing the burden on industry twice, especially where that results in paying the employee so much that it becomes to his advantage to remain away from work.
Id. at 736-737 citing Schneider, Workmen's Compensation Law (2d ed.) § 47 at 412. See also McLaughlin's Case, 274 Mass. 217, 222 (1931).
The Mizrahi's Case reasoning was extended to the context of partial incapacity involving unemployment benefits and workers' compensation in Pierce's Case, 325 Mass. 649 (1950), where the court stated that both types of benefits "are charges on industry, but . . . it was not intended [by the legislature] that industry should be saddled with the double burden of paying [unemployment] benefits and [workers'] compensation during the same period in which an employee is not earning wages." Id. at 658. See also Gallant's Case, 326 Mass. 507, 508 (1950); cf. Rival's Case, 8 Mass. App. Ct. 66 (1979).
There is no doubt that a partially incapacitated worker can suffer from both a work injury and from economic depression, which the acts were respectively created to guard against. And certainly rationales against double recovery and not overburdening industry during periods when an employee is not earning wages become more attenuated where a worker is partially versus totally incapacitated. Nonetheless, the aforementioned long held legislative rationale has withstood the test of time despite the apparent disparity pointed to by the employee.
Judgment affirmed.
_________________________ Susan Maze-Rothstein Administrative Law Judge
_________________________ Edward Kirby Administrative Law Judge
_________________________ Suzanne Smith Administrative Law Judge
Filed: May 16, 1996