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Massachusetts Review Board Holds Employee Entitled to Average Weekly Wage Set Forth in Conference Order, Employee Had Not Appealed the Order

The main issue in a recent case before the Massachusetts Department of Industrial Accidents, Reviewing Board, was a dispute regarding an injured employee’s average weekly wage.  A judge had determined that the employee was entitled to benefits, based on an average weekly wage of $1,726.37.  The employer contended that the employee had not appealed from a conference order and therefore should have received the lower amount, $1,490.33, the average weekly wage set forth at the conference.

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The employee worked as a carpenter and was injured at work while moving a large piece of machinery that tipped. His claim was covered by workers’ compensation, and there was liability for the injury.  After receiving benefits, based on an average weekly wage of $800.00 per week, the employee sought an adjustment of this amount.

In support of a claim for a weekly wage of $1,490.22, the employee submitted evidence in the form of medical reports and a Form 1030 Tax Return.  At a conference, the issue was whether the judge should adjust the employee’s weekly wage.  The judge held the employee was entitled to weekly benefits based on the wage of $1,490.33.  The insurer appealed, but the employee did not.

The judge at the hearing found that the employer was trying to save money and had not paid workers’ compensation insurance, nor payroll taxes. The judge found that the employer should not be rewarded for this behavior and awarded an average weekly wage of $1,726.37.  On appeal, the employer argued that the employee could not receive more than his wage awarded at the conference ($1,490.33) because he had not appealed.

According to Massachusetts law, a party who fails to timely appeal a conference order has been deemed to accept the judge’s order and findings.  The Board stated that the best the employee could do would be to receive the award of benefits based on the average weekly wage in the conference order.

The court stated that the judge impermissibly adjusted the average weekly wage upward, without there being an appeal by the employee. According to the Board, the judge therefore expanded the scope of the dispute.  The Board stated that the employee was entitled to the average weekly wage determined at the conference ($1,490.33).

Additionally, the Board held it was not proper for the judge to find that the employee had injured his right knee in the industrial accident.  The issue before the judge at that time was the employee’s average weekly wage.  While the judge did have the authority to make further inquiries at hearings, the results of those inquiries cannot be a basis to expand the issues in controversy.

While the judge’s error did not affect the outcome of the dispute regarding the average weekly wage, it could affect the employer adversely if it came before a new judge, on a different claim.  The Board vacated the finding concerning the employee’s injury to his right knee.

The dedicated Boston workers’ compensation lawyers at Pulgini & Norton represent injured workers as they seek benefits and compensation after a work-related injury.  We provide a free, no-obligation consultation with a skilled workers’ compensation lawyer. Call our office at (781) 843-2200 or fill out our online form to learn more about your rights.

More Blog Posts:

Massachusetts Reviewing Board Recommits Case When Judge May Have Been Biased and Failed to Rule on Objections in Medical Depositions, Massachusetts Workers’ Compensation Lawyer Blog, June 2, 2017

Massachusetts Court Holds Workers’ Compensation Law Provides for Interest from Filing Date of Claim Ultimately Resulting in Award of Benefits, Massachusetts Workers’ Compensation Lawyer Blog, May 11, 2017

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