Massachusetts Employee Contests Earning Capacity in Workers’ Compensation Appeal

The Massachusetts Department of Industrial Accidents Reviewing Board recently issued a decision in the case of Gradziel v. Berkshire Medical Center, in which an employee appealed a decision from the administrative judge modifying her § 35 benefits. In the workers’ compensation appeal, the employee argued that the judge erred by basing her earning capacity on full-time employment, when she was only working part-time at the time of the injury and thereafter.

The employee had worked for the employer as a nurse for 24 years. For 12 years prior to the industrial injury, she worked 24 hours a week in three eight-hour shifts. In January 2009, the employee injured her left ulnar nerve while lifting a patient. She continued to work 24 hours a week in a light duty capacity until her surgery in May 2009. In accordance with the employer’s policy to limit the duration of temporary light duty work, the employee accepted a permanent light duty, telemetry job. The position was consistent with her permanent physical restrictions regarding repetitive use and lifting no more than 10 lbs.

The employer’s insurer filed a complaint for modification of the employee’s benefits, contending that the employee’s earning capacity should be calculated based on a 36-hour work week, at the hourly rate she was earning in her new telemetry position. Pursuant to § 11A, an independent medical doctor examined the employee and opined that she could work in her telemetry position 36 hours per week, and that she could also work at another job within the physical restrictions set by her physician up to 40 hours per week. Accordingly, under G. L. c. 152, § 35D(4), the administrative judge found the employee was capable of working 36-40 hours per week earning $22.90 per hour, her rate of pay in her telemetry job. The judge also found that, although the employee chose to work under 36 hours per week, her capacity is that of a full-time worker, with limitations.

On appeal to the Reviewing Board, the employee argued that her post-injury earning capacity should be based on a 24-hour work week, consistent with the hours she worked before and after her injury. The Board did not agree, stating that actual earnings are only one factor in assessing earning capacity under § 35D, and they may establish the floor—not the ceiling—for the assignment of that figure. Although it is undisputed that the employee could not earn the hourly wage she earned prior to her injury, § 35D(4) provides that an employee’s earning capacity may be based on the earnings the employee is capable of earning, with the reasonable use of all her faculties. In light of the law, and the fact that the employee did not present any evidence that an increase in her work hours from 24 to 36 would be a hardship or require unreasonable use of her faculties, the Board affirmed the administrative judge’s decision.

If you have been injured in a workplace accident, you may be able to recover for your medical expenses and lost wages by filing a claim for workers’ compensation benefits. At the Massachusetts firm of Pulgini & Norton, our workplace injury attorneys have substantial experience representing individuals seeking workers’ compensation benefits. To discuss your claim with one of our skilled attorneys, contact our office at (781) 843-2200 or through our website and schedule a consultation.

More Blog Posts:

For Massachusetts Workers’ Compensation Recipient, USPS Earnings Not Included in Average Weekly Wage, Massachusetts Workers’ Compensation Lawyer Blog, published August 5, 2015

Massachusetts Reviewing Board Analyzes Affect of Seasonal Employment on Average Weekly Wage, Massachusetts Workers’ Compensation Lawyer Blog, published October 20, 2015

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