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Massachusetts Reviewing Board Recommits Case to Determine Injured Employee’s Average Weekly Wage Because Judge Had Not Provided Basis for Ultimate Finding

In a recent appeal, the Massachusetts Reviewing Board, Department of Industrial Accidents recommitted a case to further determine whether the employee’s average weekly wage had been properly determined.

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The employee in this case was 27 years old when the hearings took place, and she worked as a mental health assistant at the time of her injury. In January 2013, she slipped on black ice at the employer’s premises and injured her back.  After receiving medication at the hospital, she was treated conservatively for two years, receiving injections and undergoing physical therapy and diagnostic testing.  In February 2013, the employee returned to modified work and also worked as a part-time bartender and a nanny.

An impartial medical examiner concluded that a work-related injury was the major cause of her disability and her need for medical treatment for her back.  The examiner offered his opinion that the employee was capable of working full time, subject to restrictions that she not lift or carry over 30 pounds.

After the judge determined that the employee was partially disabled, with an earning capacity of $300 a week, he also stated that she was at maximum medical improvement and did not need further conservative treatment.  The judge also stated he would not disturb an agreement (under § 19 of the Workers’ Compensation Act) that stated that the average weekly wage was $510.58.  A conference order had assigned this wage as $541.58, and ultimately, the judge’s determination was that this was the wage.

On appeal, the insurer contended that the weekly wage was incorrect and that the agreement set forth a weekly wage of $510.48. The Board noted that the judge had asked the parties if they stipulated to this amount, and they affirmed. The Board upheld the finding that this was the appropriate wage.

However, the Board agreed with the insurer that the judge had not properly determined the employee’s earning capacity. The rule is that a judge’s decision must reveal a basis for its finding.  Here, the judge found the employee’s § 35 rate had been the maximum partial benefit ($135.40 maximum), but that was inconsistent with the testimony set forth by the employee that she earned $300 a week.

Additionally, the Board stated that the evidence showed the employee could work with restrictions, but the judge had not explained why she could not work on a full-time basis.  The Board recommitted the case for further findings regarding the employee’s earning capacity.

Next, the Board assessed whether the judge should have ordered reimbursement for aqua therapy.  The Board stated the rule that the employee must prove each and every element of a claim.  In this case, the employee had not made a specific claim for aqua therapy.  The insurer had not denied an aqua therapy claim, and the judge had not addressed it. Here, the insurer did not have a  reason to believe that evidence regarding aqua therapy would be considered.

The Board ultimately recommitted the case to further determine the employee’s earning capacity, and it affirmed other aspects of the judge’s decision.

If you or someone close to you has been injured in a work-related accident, you may be entitled to benefits, including the payment of medical expenses and lost wages. At the Massachusetts firm of Pulgini & Norton, our work injury attorneys help individuals and families pursuing workers’ compensation benefits. To discuss your claim with one of our experienced attorneys, contact our office at (781) 843-2200 and set up a free consultation.

More Blog Posts:

Massachusetts Employee’s Average Weekly Wages Based on Prior Salary, Not Anticipated Salary, for Workers’ Compensation Benefits, Massachusetts Workers’ Compensation Lawyer Blog, October 6, 2015

Massachusetts Review Board Upholds Compensation Award to Injured Employee, Rejects Insurer’s Argument That “Going and Coming” Rule Applied, Massachusetts Workers’ Compensation Lawyer Blog, June 8, 2017

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