The Massachusetts Reviewing Board of Industrial Accidents recently addressed whether an administrative judge properly awarded partial incapacity benefits to an injured employee. In this case, the employee suffered injuries at work, and the employer’s self-insurer argued the judge should have determined his earning capacity as a college graduate, despite the fact that he had not graduated from college. The Board held there was no requirement the judge must consider the employee’s degree as it related to his earning capacity.
Michael Glazer worked for North Shore Medical Center Salem Hospital as a psychiatric counselor from 2006 until 2011. He attended college part-time for three years but did not graduate. His responsibilities included conducting group sessions, restraining patients, and maintaining security. Mr. Glazer was injured at work while helping to restrain a combative patient. He returned to work on light duty but then left in January 2012. Later, the Medical Center terminated Mr. Glazer’s employment because it was determined that he had submitted a false degree from Northeastern University, with the hope it would help him secure the job.
In 2013, a hearing took place concerning Mr. Glazer’s claim for benefits. The parties reached an agreement to pay Mr. Glazer section 35 benefits, based on an earning capacity of $792.88. The self-insurer appealed after its complaint to modify or discontinue Mr. Glazer’s benefits was denied.
Mr. Glazer then underwent surgery on his left shoulder and claimed at the hearing on the self-insurer’s appeal of the conference order that a causal relationship existed between his right shoulder work-related injury and his left shoulder surgery. The judge rejected that claim but adopted a medical opinion causally relating Mr. Glazer’s disability and his need for future right shoulder surgery to his work-related accident. After hearing Mr. Glazer’s complaints of pain and testimony that he could participate in sedentary work, the judge found Mr. Glazer partially incapacitated due to his work-related right shoulder condition.
The judge found that Mr. Glazer’s earning capacity should not be based on his having a college education. The judge ordered the Hospital’s self-insurer to pay Mr. Glazer section 35 benefits at the rate of $670.78, based on his weekly wage of $1,910.85. The self-insurer appealed and argued that the judge erred in assessing Mr. Glazer’s earning capacity on the basis that he held a college degree.
The Reviewing Board stated that the law does not require a judge to determine an employee’s earning capacity based on a degree that the employee does not possess. In other words, the Board stated that the judge had not erred in determining Mr. Glazer’s earning capacity because there was no evidence that Mr. Glazer would not have been offered the position without a college degree.
The Board also stated that it had not been an error for the judge not to consider whether Mr. Glazer could have worked overtime, as he had done before his injury. The rule, according to the Board, is that a judge can consider an employee’s customary work week, and if that included overtime, it could be included in assigning earning capacity. However, the Board stated a judge is not required to consider overtime before an injury. In this case, Mr. Glazer testified that his pain and limitations included his right shoulder. The judge found that Mr. Glazer suffered an ongoing partial incapacity.
The Board affirmed the decision of the lower court.
At Pulgini & Norton, an experienced Boston workers’ compensation attorney can provide legal guidance and strong advocacy on behalf of your right to compensation following a work-related injury. We provide a free, confidential consultation with an experienced workers’ compensation lawyer. Call our office today to discuss your claim at (781) 843-2200 or contact us online.
More Blog Posts:
Massachusetts Board Holds that Employee Suffered Industrial Injury Because She Showed Causal Relationship Between Asthma Condition and Exposure to Irritants at Workplace, Massachusetts Workers’ Compensation Lawyer Blog, July 28, 2016
Massachusetts Appeals Court Finds for Worker Claiming Partial Incapacity Benefits, Massachusetts Workers’ Compensation Lawyer Blog, August 12, 2015