Opinion
Board No. 07284189
Filed: September 8, 1995
REVIEWING BOARD DECISION
(Judges McCarthy, Fischel and Wilson)
APPEARANCES
Paul A. Gargano, Esq. for the employee at hearing and on brief.
David G. Shay, Esq. for the employee on appeal.
Daniel P. Napolitano, Esq. for the insurer.
Daniel Spinosa suffered head trauma on October 20, 1989 in the course of his job as a construction superintendent. (Dec. 6). Despite continuing symptoms he returned to work on November 8, 1989. (Dec. 8, 9). He was laid off from his job on October 13, 1990 and has not worked since. (Dec. 9, 15).
This case is before us on cross appeals. We summarily affirm the decision of the administrative judge insofar as compensation pursuant to § 35, medical expenses pursuant to § 30, interest, costs and attorney's fees were ordered and the insurer's § 27 defense was denied. The single remaining issue is whether § 51A is applicable.
The employee argues that § 51A applies to his weekly § 35 benefits and asks us to apply the maximum weekly compensation rate in effect on the filing date of our decision. This issue was not raised at the hearing. The insurer argues that failure to raise the issue prior to this appeal amounts to a waiver and even if it were not waived, it is inapplicable because the insurer paid compensation following the employee's original injury. We find the insurer's arguments unpersuasive.
The parties stipulated to an average weekly wage of $1013.44 and the administrative judge found that the employee had a weekly earning capacity of $170.00. Under the provisions of § 35 in effect on October 20, 1989, the employee's date of injury, he was entitled to two-thirds of the difference between his average weekly wage less his earning capacity but not more than the maximum compensation rate. The two-thirds calculation works out to $562.29 but since the maximum compensation rate on October 20, 1989 was $474.47, the employee would be limited to the lower figure.
On the date of his injury § 35 read as follows:
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to two-thirds of the difference between his average weekly wage before the injury and the weekly wage he is capable of earning after the injury, but not more than the maximum compensation rate.
The total number of weeks of compensation due the employee under this section shall not exceed six hundred.
Maximum weekly compensation rate is defined in G.L.c. 152, § 1(10) as one hundred percent of the average weekly wage in the commonwealth according to the calculation on or next prior to the date of injury by the director of the division of employment security.
Section 51A provides:
In any claim in which no compensation has been paid prior to the final decision on such claim, said final decision shall take into consideration the compensation provided by statute on the date of the decision, rather than the date of the injury.
Added by St. 1969, c. 833, § 1.
Section 51A operates as a matter of law to benefit the employee when no compensation has been paid on a claim (emphasis added) prior to the final decision and the compensation provided by statute in effect on the date of decision exceeds that statutorily provided on the date of injury. See McLeod's Case, 389 Mass. 431, 434 (1983); Bauman v. Faulkner Hospital, 8 Mass. Workers' Comp. Rep. 238, 240. Its operation is not waived by the employee's failure to specifically raise it at the hearing before the administrative judge. Much like the payment of interest under § 50, it is self operative.
The insurer paid a closed period of benefits to Spinosa immediately after his initial October 20, 1989 injury but it resisted his claim for further weekly incapacity benefits. Thus, the insurer had not paid compensation on a claim and the earlier acceptance for a closed period does not take the claim out of the sweep of § 51A.
Section 51A was added by St. 1969, c. 833, § 1 and has never been amended. It creates an exception to the general rule that the rate of compensation is set by the date of injury. Were we to apply § 35 in its present form it would be financially unwelcome to the employee because the current version of § 35 decreases the rate of compensation to sixty percent from two-thirds of pre-injury average weekly wage, limits partial incapacity benefits to no more than seventy-five percent of total incapacity benefits and lowers the number of weeks of eligibility from six hundred to two hundred sixty.
See St. 1991, § 69 which amended § 35 to read, in pertinent part:
While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four. . . .
The total number of weeks of compensation due the employee under this section shall not exceed two-hundred sixty. . . .
The core question is whether § 51A must be applied when it reduces the benefit entitlement. We think the answer is no. In McLeod's Case, 389 Mass. 431 (1983), the Supreme Judicial Court held that the board and the courts were required by § 51A to compute compensation at the rates in effect on the date of final decision. In McLeod there had been an increase in rates between the date of injury and the date of decision so the court did not have to confront the situation before us. So far as we know the issue has not been reached by either the Massachusetts Appeals Court or the Supreme Judicial Court. We do however have the benefit of dicta in Madariaga's Case, 19 Mass. App. Court 477, 483.(1985) It reads as follows:
The court (referring to the Supreme Judicial Court in McLeod's case) specifically pointed out that "§ 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." 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. 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.
To compel the employee to accept the lower rates by forcing the application of § 51A would surely frustrate the legislative intent of c. 152 as a whole. "The Act is to be interpreted in the light of its purpose and, so far as may be, to promote the accomplishment of its beneficent design." Young v. Duncan 218 Mass. 346, 349 (1914). See alsoNeff v. Commissioner of The Department of Industrial Accidents, 421 Mass. 70 August 9, 1995.
One part of this complicated process of fixing weekly rates and aggregate maximum benefits remains amenable to the operation of § 51A and that has to do with the ceiling or cap on maximum weekly payment. The weekly maximum compensation rate is equivalent to the "state average weekly wage" (see § 1(9), 1(10)), a figure calculated annually by the director of the division of employment security under the provisions of G.L.c. 151A, § 29A. We see no reason why the current state average weekly wage of $585.66. Thus, the calculation of Spinosa's § 35 rate falls below the current cap of $585.66, i.e. average weekly wage of $1013.44 less an earning capacity of $170.00 multiplied by 66-2/3%, or $562.29.
Chapter 151A, § 29A provides, in pertinent part:
On or before the first day of October of each year, the total wages reported on contribution reports for the twelve months ending March the thirty-first of such year shall be divided by the average monthly number of insured employees (determined by dividing the total insured employees reported on contribution reports for the twelve months ending March the thirty-first by twelve). The average annual wage thus obtained shall be divided by fifty-two and the average weekly wage thus determined, rounded to the nearest cent. Fifty-seven and one-half per cent of this amount, rounded to the next lower full dollar amount shown shall establish the maximum weekly benefit rate paid any individual who benefit year commences on or after the first Sunday of October of each year and prior to the first Sunday of October the following year.
We therefore order payment of incapacity benefits under § 35 at the rate of $562.29 per week. The insurer is also directed to pay employee counsel a fee of $1,000.00 under the provisions of § 13A (6). In all other respects the decision of the administrative judge is affirmed.
Judges Fischel and Wilson concur.
_____________________________ William A. McCarthy Administrative Law Judge
_____________________________ Carolynn N. Fischel Administrative Law Judge
_____________________________ Sarah H. Wilson Administrative Law Judge
Filed: September 8, 1995