Opinion
Board No. 75862-91
Filed: May 24, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Judith B. Gray, Esquire, for the employee
Paul M. Moretti, Esquire, for the insurer
The employee appeals from a decision awarding him weekly compensation benefits for total incapacity pursuant to the provisions of §§ 34 and 35B. The employee contends that the judge erred by applying the sixty percent compensation rate, made effective on December 23, 1991 by amendment to § 34 (St. 1991, c. 398, § 59), in this claim for a December 14, 1993 recurrence of a March 31, 1991 industrial injury. We disagree and affirm the decision.
The employee injured his lower back while working on March 31, 1991, for which he underwent a laminectomy. At the time of the industrial injury, the employee's average weekly wage was $480.77. The employee received compensation at the weekly rate of $320.51, two thirds of the average weekly wage, pursuant to G.L.c. 152, § 34 (St. 1985, c. 572, § 42). After further surgery, the employee returned to work in December 1992. After a period of more than two months, the employee's condition again worsened, and he underwent a third surgical procedure on or about December 14, 1993. At the time of that December 1993 incapacity, the employee's average weekly wage was $563.30. The employee claimed the benefit of § 35B, and the insurer made the employee's § 34 weekly indemnity payments in the amount of $337.98, representing sixty percent of the December 1993 average weekly wage. The insurer contended that the sixty percent rate was appropriate because, under the current version of § 34, the employee was no longer entitled to the two thirds rate that obtained under § 34 at the time of his industrial injury. The employee did not agree and filed this claim for further benefits under § 35B. (Dec. 4-5.)
G.L.c. 152, § 35B (St. 1970, c. 667, § 1) provides, in pertinent part:
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 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, § 34 (St. 1991, c. 398, § 59) states, in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed one hundred fifty-six.
G.L.c. 152, § 34 (St. 1985, c. 572, § 42) stated in its entirety:
While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.
The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty.
The judge heard the claim on stipulations and briefs. He concluded that the employee had met the factual predicate for entitlement to the benefit of § 35B, that is, the employee had been incapacitated and received compensation for a work-related injury, had returned to work for a period greater than two months and had suffered a subsequent injury in the form of a recurrence. The judge therefore decided that the employee was entitled to incapacity benefits based on his $563.30 average weekly wage at the time of his December 1993 "subsequent injury." (Dec. 5.) He then reasoned that the employee's "rate" of compensation within the meaning of § 35B, is not synonymous with but includes more than an employee's average weekly wage. The judge stated, "I find that the term `rate of compensation' includes all the provisions that make up the Act in determining the weekly rate to be paid to the employee." (Dec. 6; emphasis in original.) Therefore, the judge concluded that the employee's rate of compensation under § 35B, was $337.98 — sixty percent of the $563.30 average weekly wage, which percentage rate under § 34 applied at the time of the December 1993 "subsequent injury." We think the judge rightly solved this knotty problem of legislative interpretation.
In Barbaro v. Smith Wesson, 9 Mass. Workers' Comp. Rep. ___ (November 2, 1995), we determined that "rate" as used in § 35B included the rates of the benefits scales within the Act — the weekly caps and the statutory maximums, set and periodically revised by the Legislature. We concluded that the employee in that case was entitled to the statutory maximum rate at the time of his "subsequent injury" in 1988, as opposed to his 1985 industrial accident. We thereby determined that the employee was entitled to § 35 incapacity benefits under the then prevailing duration-based provisions of St. 1985, c. 572, § 44, establishing six hundred weeks of entitlement, rather than the monetary statutory maximum of 250 times the average weekly wage, applicable under the prior version of § 35, St. 1981, c. 572, § 2.
Since the "subsequent injury" under § 35B is not a new "personal injury" entitling an employee to a whole new benefits package under the Act, those benefits paid at the time of the original injury are set off against the new statutory maximum in effect at the time of the subsequent injury. Rainville v. Roy's Towing, 9 Mass. Workers' Comp. Rep. ___ (November 21, 1995). SeeZerofski's Case, 385 Mass. 590, 596 n. 7 (1982 ("subsequent injury" covers broader range of harm than "personal injury.")
We see no substantive difference between the legislatively set statutory maximum rates at issue in Barbaro, and the legislatively established percentage rates for § 34 benefits here at issue. The change from the two-thirds rate to the sixty percent rate in 1991 is wholly within the rationale of the discussion in Barbaro, and we adopt and apply our reasoning therefrom. The judge was correct to interpret § 35B in a manner that anticipated our decision in Barbaro, and to apply that reasoning in this case.
The employee argues that the judge's use of § 35B to apply the newly amended 1991 version of § 34 worked a retroactive application of a substantive amendment. The argument is misplaced. The amendment to § 34 in St. 1991, c. 398, § 59 is specifically deemed substantive in character, and is therefore prospective in application. See St. 1991, c. 398, § 106. Normally there would be no question that this amendment could not affect the rights of an employee, such as the instant one, with a date of injury prior to the December 23, 1991 effective date of the amendment. Nonetheless, § 35B is an exception to this rule. The Appeals Court held in Bernardo's Case, 24 Mass. App. Ct. 48 (1987):
[W]e conclude that the enforcement order does not constitute a retroactive application of § 35, as amended through 1981. We stated in Don Francisco's Case, 14 Mass. App. Ct. at 463, that "[u]nder § 35B. . . the employee's right to compensation at the increased rate and the insurer's burden to pay it originate in the change in the employee's condition subsequent to his return to work." Where, as here, the employee's subsequent injury occurs after December 1, 1981, the effective date of St. 1981, c. 572, § 2, application of that amendment is not retrospective.
Bernardo's Case at 52. The 1981 amendment to § 35 at issue inBernardo, like the instant 1991 amendment to § 34, was enacted with a specific section characterizing the amendment as substantive. Id. at 51, citing St. 1981, c. 572, § 5 (providing that the amendment "shall apply only to injuries occurring on or after its effective date"). That specific section carried no weight in Bernardo, and it carries none here. In conformity with Bernardo the issue of retroactivity does not arise in reference to the application of changes in compensation rates applying to prior injury dates by way of § 35B. In short the application we make is prospective.
The employee's argument to the same effect using the provisions of G.L.c. 152, § 2A (St. 1991, c. 398, § 16) would lose for the same reason, if it were applicable. However, where the Legislature has expressly provided a section defining the specific rule of applicability for an amendment, as St. 1991, c. 398, § 106 does for the 1991 amendment to § 34, we look to that section for guidance rather than the general rules laid out in § 2A.
We next must clarify the application of our Barbaro decision to the case at bar, by reference to our recent case construing § 35B, Puleri v. Scheaffer Eaton, 10 Mass. Workers' Comp. Rep. ___ (January 25, 1996). In Puleri, we expanded upon the Barbaro § 35B analysis. First, we determined that the term "rate" within the meaning of § 35B includes an employee's compensation "rate [based on the average weekly wage] in effect at the time of the subsequent injury." Puleri, supra, quoting § 35B (emphasis in original). Applying this rationale to the instant case, we again affirm the judge's interpretation of § 35B to entitle the employee to weekly compensation benefits based on his $563.30 average weekly wage in December 1993.
The second issue raised in Puleri called upon us to decide whether § 35B could be used by an insurer to its benefit by decreasing an employee's compensation benefits. There we stated that,
[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, [footnote omitted] § 35B must be construed to benefit employees, not to disadvantage them.
Id. We applied this rationale to deny the insurer's contention that it was entitled to assert the provisions of § 35B to force an average weekly wage upon the employee which was lower at the time of the "subsequent injury" than that which applied to the original date of injury. We concluded:
. . .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. [Footnote omitted.] 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. [Footnote omitted.]
In Puleri, the judge had assigned, and we affirmed, a different, higher average weekly wage at the time of the § 35B recurrence or "subsequent injury." For this reason, we concluded that § 35B still applied in that case.
Id., emphasis added. See also Madariaga's Case, 19 Mass. App. Ct. 477, 483 (1985). This construction has important implications for the case at hand. The question before us is whether an employee, in order to maximize his compensation benefits, might pick and choose among the various elements making up § 35B "rates," thus receiving a weekly compensation rate based on a higher average weekly wage at the time of the recurrence, but maintaining the higher percentage rate (66 2/3% v. 60%), along with the prior and higher statutory maximum rate (e.g., under § 34, 260 weeks v. 156 weeks), that applied on the original injury date. We see no basis for such a construction of § 35B.
Although not addressed by the parties, we must emphasize that the most substantial change in legislatively enacted rates that occurred as a result of the 1991 amendments was the decrease in the length of eligibility periods under both §§ 34 and 35. See, e.g., notes 2 and 3 supra. Our analysis here, although specifically addressing the issue of the change in the percentage rates argued by the parties, applies with equal force to the contraction of the periods of eligibility. In other words, employees with original injuries occurring 1986-1991 will be well advised to look long and hard at whether the application of § 35B, although perhaps providing them with a higher average weekly wage, is really worth the surrender of years of eligibility under the new §§ 34 and 35.
Section 35B provides for an employee to be paid compensation benefits "at the rate in effect at the time of the subsequent injury," upon satisfaction of its factual predicates. While we have established in Barbaro, supra, and Puleri, supra, that § 35B's "rate" contains more than one concept, we think that it can only apply to one moment in time — the "subsequent injury" date. The employee may not seek to have § 35B apply to only such pieces of his case which he prefers. When invoking § 35B, an employee shifts the entire focus of the applicable "rate" of compensation — including all of the permutations of that term as we have construed it in Puleri, supra, and Barbaro, supra — to "the time of the subsequent injury." If the employee determines this whole package of new "rates" is not something that is in his best interest, he should not raise § 35B.
To the extent that we have stated that § 35B is "self-operative," see, e.g., Arruda v. George E. Keith Co., 5 Mass. Workers' Comp. Rep. 14, 15 n. 3 (1991), we now over rule such assertions. It is obvious now that the employee, and not the insurer, or even the judge, must have exclusive and absolute control over whether to raise this complicated section of the Act.
It is the employee's option to invoke § 35B to enhance his compensation benefits by way of higher weekly and/or statutory rates at the time of a recurrence. See this board's most recent decision on this point, Kelly v. Massachusetts Bay Transp. Auth. 9 Mass. Workers' Comp. Rep. ___ (May 14, 1996), citing Madariaga's Case, 14 Mass. App. Ct. 477 [ 19 Mass. App. Ct. 477], 483 (1985). The benefit to be gained by the application of § 35B, however, has been significantly curtailed by the reduction in statutory maximum benefits and percentage rates under the 1991 amendments. As discussed above, the analysis in Bernardo's Case and Don Francisco's Case, supra, mandates that the 1991 amendments be applied by way of § 35B, regardless of their effect in decreasing benefits. Nonetheless, an employee might have such a significant increase in his/her average weekly wage between the time of the original injury and the "subsequent injury" that the application of § 35B might still be worthwhile. This would be true, in particular, when a subsequent period of incapacity might be of foreseeably short duration. However, we recognize that, for most employees, there will be little benefit to be derived from § 35B, as it applies to post-1991 recurrences.
We do note that the weekly caps, another § 35B "rate," continue to increase pursuant to G.L.c. 152, § 1 (10) and G.L.c. 151A, § 29(a).
Because our interpretation of § 35B could have a great impact on eligibility of the instant employee for compensation benefits due to his recurring lower back condition, we specifically allow him to reopen his claim to retract his claim under § 35B within sixty days of the filing of this decision. We consider that our equitable powers implied within the Act allow for this unusual disposition. See Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 267 (1985). In the event that the employee should pursue this course, the insurer will take credit for those payments of weekly benefits at the higher "subsequent injury" average weekly wage and the sixty percent rate under St. 1991, c. 398, § 59.
We affirm the decision. If the employee wishes to reopen his case, in accordance with the preceding paragraph, he may request that the senior judge reassign his case for the limited purpose of retracting the § 35B claim.
The administrative judge whose decision we have affirmed is no longer sitting as a member of the Industrial Accident Board.
_____________________ Edward P. Kirby Administrative Law Judge,
_____________________ Susan Maze-Rothstein Administrative Law Judge
Filed: May 24, 1996
This case presents the same troubling question as Louis v. Anthony's Pier Four, 8 Mass. Workers' Comp. Rep. 311 (1994), appeal docketed, No. 07159 (Sup. Jud. Ct. March 1, 1996): what is the meaning of "rate" in G.L.c. 152, § 35B? I concur in the majority opinion that the "rate" of compensation under G.L.c. 152, § 35B is calculated by reference to the appropriate statutory formulas, e.g. specified in §§ 31, 34, 35, and 36, in effect on the date of the "subsequent injury", utilizing the employee's average weekly wage at the time of the "subsequent injury." I part company from the opinion where it indicates that the statutory section may be invoked only by employees. The law must be fairly and evenhandedly applied to all.
Section 35B by its terms is not limited to situations where it increases employee benefits. See Louis, supra (§ 35B applied even though it resulted in decreased benefits). The language of the statute is mandatory, not permissive. 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 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; 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. (emphasis added)
Although the section was enacted to avoid the obsolescence of rates, one must recognize that such obsolescence may be caused by rates that are too high, as well as too low. The 1991 Legislature obviously was dealing with the former problem in decreasing the compensation rates in §§ 34 and 35. See Tobin v. Town of Stoughton, 9 Mass. Workers' Comp. Rep. 118, 126-127 (1995) (cost-saving purpose of 1991 reforms).
We must presume that in enacting St. 1991, c. 398, § 106, which labelled the rate changes as substantive under G.L.c. 152, § 2A, the Legislature was aware of the Appeals Court decision in Bernardo's Case, 24 Mass. App. Ct. 48 (1987) which construed the reoccurrence date to be a new injury date for purposes of G.L.c. 152, § 2A. See Bursey's Case, 325 Mass. 702, 707, 92 N.E.2d 583, 586 (1950) (It is a well-settled rule of statutory interpretation that, when a statute after having been construed by the courts is re-enacted without material change by the Legislature, it is presumed to have adopted the judicial construction put upon it).
Whatever the statute means, a judge may not look at the result it produces in a particular case to determine whether to apply it. Section 35B does not contain language making its application solely at the election of the employee. Compare G.L.c. 152, § 24 (election of common law rights). Therefore the judge must interpret the statute in the same manner for all litigants. To do otherwise violates basic principles of fundamental fairness and equal protection which are the bedrock of our legal system.
If § 35B itself has become obsolete due to other statutory changes, then the remedy lies in the Legislature. Recognizing the potential hardship created by § 35B for employees who have returned to work with an injury-caused diminished wage-earning capacity, the reviewing board in Louis urged a legislative solution. Louis, 8 Mass. Workers' Comp. Rep. at 314; see Russo v. General Elec. Co., 8 Mass. Workers' Comp. Rep. 52, 57 (1994) (benefit expansion should come through legislative action, not through judicial action legislating under the guise of furtherance of the beneficent design of the Act). "Under our system of government there are those who are charged with the duty of considering such questions, and there is an orderly procedure for carrying out whatever they may determine".Bursey's Case, 325 Mass. 702, 707, 92 N.E.2d 583, 586 (1950). The Massachusetts Bar Association has proposed legislation to address the § 35B problem. We should let the Legislature struggle with the complex policy decisions involved and enforce its solution rather than legislate a result here.
Equity is not served by the majority result. This employee sought the application of § 35B. The judge applied it properly. After extended litigation, it is unjust on appeal sua sponte to allow the employee to retract his claim and to remand, further prolonging the adjudicatory process. See G.L.c. 152, § 11B (procedures within the division of dispute resolution shall be as simple and summary as reasonable). Furthermore, the board lacks the power to order this unusual disposition.
The employee did not request such relief. He merely sought a ruling that his § 35B benefit be calculated by multiplying his "subsequent injury" average weekly wage by sixty-six and two thirds percent. (Employee's Brief, 9.)
The reviewing board is not a court of general or limited common law jurisdiction with broad equity powers. Louis, 8 Mass. Workers' Comp. Rep. at 31 [citing Hayes's Case, 348 Mass. 447, 452-453 (1965)]. Since the early days of the Workmen's Compensation Act, courts have recognized that the board "is purely and solely an administrative tribunal, specifically created to administer the workmen's compensation act in aid and with the assistance of the Superior Court . . ., and as such possesses only such authority and powers as have been conferred upon it by express grant or arise therefrom by implication as necessary and incidental to the full exercise of the granted powers . . . ." Hansen's Case, 350 Mass. 178, 180, 213 N.E.2d 869, 870 (1966) (quoting from Levangie's Case, 228 Mass. 213, 216-217, 117 N.E. 200, 201 and Hayes's Case, supra).
The power to join an indispensible party arose from the Act by such implication. See Utica Mut. Ins. Co. v. Liberty Mut. Ins. Co., 19 Mass. App. Ct. 262, 267 (1985). The Utica court in no way overruled the general rule enunciated above.
The workers' compensation act contains no provision for a remand except "when appropriate . . . for further findings of fact." G.L.c. 152, § 11C. The majority does not describe the necessity for further factual findings but merely seeks to change the result by allowing retraction of a fully litigated claim. Because the decision is not arbitrary, capricious or contrary to law, it should be affirmed. Id.
_____________________ Suzanne E.K. Smith Administrative Law Judge