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Massachusetts Reviewing Board Modifies Partial Disability Award After Judge Based Employee’s Earning Capacity Above Hourly Minimum Wage Without Supporting Evidence

In a recent opinion, the Massachusetts Department of Industrial Accidents, Reviewing Board, reviewed a decision awarding benefits to an employee injured in the course and scope of her employment. One issue in this appeal was whether the judge had properly awarded the employee partial incapacity benefits based on an earning capacity above minimum wage, without evidence showing that her earning capacity was in fact above the hourly minimum wage.

hand injury

In this case, the employee had appealed a decision awarding her a closed period of § 35 partial incapacity benefits, based on an earning capacity of $360.00 per week. She was also awarded § 30 medical treatment based on a contusion to her left hand. The Massachusetts Reviewing Board found that the employee’s award should be reduced to reflect the minimum wage at the time of the order, since there had not been vocational testimony assisting in determining the amount she should receive.

The employee worked as a construction supervisor and claimed that she injured her left hand, left arm, shoulder, neck, lower back, and hip when a box truck sideswiped her car while she had her left hand extended out the window.  The judge did not credit the testimony the employee gave regarding how the accident took place, or the injuries she had suffered.  He did adopt the impartial examiner’s medical opinions and the self-insurer’s examining orthopedist’s opinions, finding the employee sustained a contusion of her left hand.

The judge also looked at the employee’s work history in real estate and her work as a construction supervisor. He found that she had transferable skills and was capable of earning at least minimum wage during the period that she was not disabled. The judge ordered § 35 benefits of $504.00 per week, based on the employee’s weekly wage of $1,200.00 and her earning capacity of $360.00 per week.

On appeal, the employee argued that the judge should not have awarded her § 35 benefits based on an earning capacity above the minimum wage without vocational testimony assisting in this award.

In the case of Spencer v. JG MacLellan Concrete Co., 30 Mass. Workers’ Comp. Rep.__ (June 9, 2016), the court had held that when there is no evidence in the record that establishes an employee’s earning capacity is above the hourly minimum wage, the amount of a partial disability award must be modified.  Likewise, the Board stated, here there was no expert vocational evidence.

The minimum wage in the Commonwealth during the period at issue was $8.00 per hour. While the judge made a finding that the employee could earn at least minimum wage, this finding could not support an award of benefits $1.00 above minimum wage. The Board stated that the award must be modified, ordering the insurer to pay the employee § 35 benefits at a rate of $528.00 per week.

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:

Reviewing Board Holds Judge Gave Inconsistent Findings in Judgment Denying Massachusetts Employee Medical Benefits and Dental Care, Massachusetts Workers’ Compensation Lawyer Blog, October 5, 2016

Injured Worker’s Partial Incapacity Benefits Upheld as Massachusetts Reviewing Board Holds Judge Not Required to Consider Effect of College Degree on Earning Capacity, Massachusetts Workers’ Compensation Lawyer Blog, August 18, 2016

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