Opinion
Board No. 00285594
Filed: July 29, 1996
REVIEWING BOARD DECISION
(Judges Maze-Rothstein, McCarthy and Smith)
APPEARANCES
Michael F. Walsh, Esq., for the employee
Dennis M. Maher, Esq., for the insurer
The insurer appeals a decision awarding the employee G.L.c. 152, § 35 partial incapacity benefits for a closed period and continuing G.L.c. 152, § 34 temporary total incapacity benefits at two-thirds of a 1992 stipulated average weekly wage. The insurer contends that pursuant to G.L.c. 152, § 35B, the award should have been calculated at sixty percent of that wage. Because the benefits were calculated in error and in view of our recent decisions discussing the application of § 35B, we find the case appropriate for recommittal.
The employee began working for Raytheon, the employer, in 1965 as a security guard, doing mostly routine "rounds" which involved checking badges, classified materials, closed areas, and operating gates.(Dec. 5.) There, he experienced a series of incapacitating injuries.
In 1971 or 1972, the employee suffered his first injury when he tripped and fell, hurting his back. (Dec. 6.) His second injury occurred in 1978 when he slipped on grease and fell, damaging his neck, shoulder, elbow, knee, hip, and back. This time, he was incapacitated for several months but later returned to work with continued medical treatment. Id. Then, in 1984, a truck hit a fence and propelling it against the employee, injuring his shoulder, neck, back, and knees. As a result, he was incapacitated for one year. Id.
The subject of the employee's benefits claim stems from his fourth injury occurring on March 24, 1988. As he pulled a gate, it fell off its track and abruptly halted. The force of this sudden shift jerked his body wrenching his neck and lower back. He received medical treatment and physical therapy. Id. Three days later, on May 27, 1988, the employee suffered yet another physical injury while he assisted a co-worker trapped under a fallen gate. (Dec. 7.) The employee treated for his back, neck, and leg conditions. He returned to work a year later with restrictions.Id. He sustained two more injuries, one in 1989, when he had problems opening a gate, and another in 1990, when an incident occurred with a broken chair.
The employee was also involved in an automobile accident in 1994, which temporarily aggravated existing pain in his lower back and neck. (Dec. 13.) This injury, however, is not at issue.
In 1990, the employee was transferred to a new location where he was assigned lighter duties. However, exposure to dampness and cold at the new locus aggravated his medical symptoms. Ultimately, these work related conditions got the better of him causing him to miss time, until he was finally terminated on or about March 28, 1992 due to excessive absenteeism. (Dec. 8.)
The employee filed for § 35 workers' compensation benefits as a result of his March 24, 1988 injury. After a § 10A conference held on July 18, 1994, the insurer was ordered to pay § 35 benefits. (Dec. 1-2.) Both parties appealed the order to a de novo hearing held on December 12, 1994. (Dec. 2.) At the hearing, the parties stipulated that § 35B should be applied to the employee's 1992 $770.87 average weekly wage. (Dec. 3-4.) The record is silent on the ostensibly lower 1988 wages.
A physician examined the employee on October 11, 1994 pursuant to G.L.c. 152, § 11A and diagnosed: 1) degenerative joint disease, cervical spine; 2) cervical spondylosis; 3) a lumbar disc protrusion; and 4) a history of multiple injuries to cervical/thoracic/lumbar spine. (Dec. 14.) He further opined that the March 24. 1988 injury aggravated a pre-existing condition and caused the employee's present condition, leaving him at an end result of permanent partial medical disability. (Dec. 14-15.)
Adopting the § 11A report as to diagnosis, causal relation, and extent of medical disability, the judge found that the March 24, 1988 injury caused the employee to be partially incapacitated from March 22, 1992 to the date of the § 11A examination, and temporarily totally incapacitated thereafter. (Dec. 16.) Section § 35 benefits were awarded in the amount of $223.62 from March 22, 1992 to October 11, 1994 and § 34 benefits in the amount of $513.91 from October 12, 1994 and continuing. Both awards were calculated at two-thirds of the $770.87 stipulated 1992 average weekly wage. (Addendum to Decision dated August 17, 1995.) The insurer appeals from this decision.
We note error in the judge's calculation of § 35 benefits. We are unable to reconcile the calculation of § 35 benefits in the amount of $223.62 from an average weekly wage of $770.87 and an earning capacity of $335.00 per week. Neither a two thirds nor a sixty percent multiplier renders that weekly award.
The insurer argues that the employee sustained a "subsequent injury", as that term is used in § 35B and therefore should be awarded §§ 34 and 35 benefits at the rate in effect at the time of that subsequent injury, to wit, sixty percent of the $770.87 stipulated 1992 average weekly wage. In the alternative, it also submits that "the conditions at gate 6 of cold and dampness and the extensive standing . . . were uncommon identifiable conditions which would require a finding of a new injury in the form of aggravation." (Insurer's Brief, 5-6.) (Emphasis added). Nevertheless, it concludes that in either event "the rate should be . . . defined as the compensation rate in effect at the time of the subsequent injury. . . ." (Insurer's Brief, 7.) (Emphasis added). First a word of caution on the insurer's usage of terms. A "new injury" would not come under the rubric of § 35B at all. The terms "new" and "subsequent" as modifying "injury" are not interchangeable. As noted in Puleri, 10 Mass. Workers' Comp. Rep. ___, (January 25, 1996), the phrase "subsequent injury" has a distinct meaning for purposes of § 35B.
"[A] `subsequent injury' in s. 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). . . . It would appear, in fact, that the only logical application of s. 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 s. 35B."
Puleri v. Sheaffer Eaton, 10 Mass. Workers' Comp. Rep. ___, n. 3 (January 25, 1996). Here, without specifically addressing the issue of a subsequent injury, the judge found that the employee's "condition worsened during the time he worked at Gate 6 [where he worked from 1989 to 1992]." (Dec. 11.) It thus appears, as the insurer's asserts, that the employee sustained a subsequent injury in 1992 in the § 35B sense of that phrase.
As for the gravamen of the insurer's appeal, our response relies on our most recent cases defining the proper application of § 35B.
Section 35B states in pertinent part:
An employee who has been receiving compensation under [c. 152] and who has returned to work for [at least] two months shall, if he is subsequently injured and receives compensation, be paid such 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;. . .
G.L.c. 152, § 35B (added by St. 1970, c. 667, § 1) (emphasis added).
The insurer correctly assumes that the term "rate" used in § 35B refers to the employee's average weekly wage at some time other than the original injury date. In Barbaro v. Smith Wesson, 9 Mass. Workers' Comp. Rep. ___ (November 2, 1995), we determined that "rate" as used in § 35B included the weekly caps and statutory maximums set by the legislature, rendering an entitlement to the statutory maximum rate at the time of a "subsequent injury." See Barbaro v. Smith Wesson Inc., 9 Mass. Workers' Comp. Rep. 652, 658 (1995). In a later case, we elaborated on the construction of "rate" within the meaning of § 35B to include the rate based on the average weekly wage at the time of the subsequent injury. See Puleri v. Sheaffer Eaton, 10 Mass. Workers' Comp. Rep. ___, slip op. 9-11, 15 (January 25, 1996).
However, based on yet another more recent opinion, we concluded it was error to award § 34 benefits, in the amount of $513.91, by applying the pre-1991 two-thirds rate to the stipulated1992 average weekly wage ($770.87). In Taylor v. Taylor Ocean Indus., 10 Mass. Workers' Comp. Rep. ___ (May 24, 1996), we specifically addressed the question of whether the various elements (i.e. statutory maximums and average weekly wage calculations) making up § 35B rate can be mixed and matched to optimize benefit awards. We held that "[w]hen invoking § 35B, an employee shifts the entire focus of the applicable `rate' of compensation . . . to `the time of the subsequent injury.'" Taylor slip op. at 8. Thus, either § 35B can be applied to the awarded benefits at the sixty percent rate if based on the stipulated 1992 average weekly wages, or if the employee chooses not to invoke § 35B, then the award can be calculated at two-thirds of his 1988 average weekly wage. But ne'er the twain shall meet; either the new rates will apply or the old will apply. Optimal admixtures are not an option.
The application of § 35B could conceivably increase the employee's maximum entitlement to benefits under the orders of the decision on appeal. However, should the employee later claim for further §§ 34A or 35 benefits after exhausting his § 34 award or if the insurer prevails on a complaint to modify benefits before the § 34 exhaustion date, invoking § 35B may render different permutations to his overall benefits. A close look at the mathematical vicissitudes should precede electing to seek § 35B application.
If § 35B is to be applied to this case, the most recent wrinkle in our interpretation of § 35B must also be considered whether an insurer can invoke § 35B as a defense to the detriment of the employee. The answer is no. 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." Kelly v. M.B.T.A., 10 Mass. Workers' Comp. Rep. ___, slip op. 7 (May 14, 1996) cited in Taylor, supra (emphasis added). Although, the employee here stipulated to the application of § 35B, he did so without the benefit of Puleri and Kelly. We cannot be sure whether the employee would have stipulated to the application of § 35B had he known at the time that the option to invoke the statute was his alone.
Accordingly, we recommit for a proper application of § 35B to this case. Specifically, the employee alone may opt to call on § 35B. See note 3, supra. If he so chooses, then the judge must make findings as to whether there was a subsequent injury for purposes of § 35B and apply the correct mathematics to the calculation of benefits due the employee.
So ordered.
________________________ Susan Maze-Rothstein Administrative Law Judge
________________________ William A. McCarthy Administrative Law Judge
Filed: July 29, 1996
I agree that G.L.c. 152, § 35B required the judge to limit the weekly benefit to 60% of the employee's average weekly wage on the date of his reoccurrence. For the reasons stated in Taylor v. Taylor Ocean Industries, 10 Mass. Workers' Comp. Rep. (May 24, 1996), I dissent from the order of remand. A reversal and order at the 60% rate is the appropriate result as the employee stipulated to the application of § 35B and the case was fully litigated on that basis. There are no "exclusively employee-invoked sections of the Act." The law must be evenhandedly applied to all.
I further challenge the dicta in the majority opinion that successive injuries are not governed by § 35B. "Arguably the legislature codified the successive insurer rule by enacting c. 152, § 35B." Louis v. Anthony's Pier Four, 8 Mass. Workers' Comp. Rep. 311, 314 (1994), appeal docketed, No. 07159 (Sup. Jud. Ct. March 1, 1996).
The plain language of the statute contradicts the majority position. Section 35B provides: "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 issubsequently injured and receives compensation, be paid such 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. . . (emphasis added)."
None of the statutory words should be construed as superfluous. See Hodge v. Klug, 33 Mass. App. Ct. 746, 754, 604 N.E.2d 1329, 1334 (1992). To construe the section to exclude new injuries would render unnecessary the words "or not" in "whether or not a recurrence" and would change the plain English usage of the term "whether" to read `only if'.
The dictionary defines "whether" as implying a choice between two alternatives. The American Heritage Dictionary, 1376 (2nd College Ed., 1985). The majority view eliminates the "new injury" one. Additionally its interpretation completely ignores the last statutory proviso: "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 (emphasis added)." Under the majority's logic, there is no reason for the "unless" phrase as § 35B cannot address new injuries.
Section 35B by its clear language governs the rate to be paid whether or not the change in an employee's physical condition which causes him to leave work is the result of a progressive deterioration of the original compensable injury (a "reoccurrence") or a major impact of current work on the preexisting condition (a "new injury"). See G.L.c. 152, § 1 (7A) (definition of a personal injury). It applies in either circumstance, rendering further fact finding on the distinction irrelevant.
In conclusion, there is no need to remand, as no further fact finding is required. Because the order of benefits at the 66 and 2/3% rate is contrary to law, § 11C requires the reviewing board to reverse and order benefits at the correct 60% rate.
Section 11C limits the reviewing board's authority by providing, in pertinent part: "The reviewing board shall reverse . . . if . . . such . . . decision is . . . contrary to law. The reviewing board may, when appropriate, recommit . . . for further findings of fact."
________________________ Suzanne E.K. Smith Administrative Law Judge
Filed: July 29, 1996