Reduction in Injured Worker’s Benefits Upheld by Massachusetts Court Because Judge’s Decision “Rectified” Omission in Earlier Order

In an appeal taken from the reviewing board of the Massachusetts Department of Industrial Accidents, an injured worker sought review of an administrative law judge’s order that reduced her earlier award of weekly benefits. The appellate court analyzed the previous orders and determined that the most recent order had evidentiary support, and in fact it addressed an omission in the earlier decision, which was the failure to calculate the employee’s earning capacity.

In July 2011, the injured worker filed a workers’ compensation claim on the ground that she had been totally temporarily incapacitated due to a work-related injury. She alleged that she suffered from bilateral carpal tunnel syndrome since June 2011. After a hearing, the administrative judge had ordered that the insurer pay the worker $253.43 per week, as partial benefits according to Massachusetts workers’ compensation laws. This amount was based on her average weekly wage ($523.19) before her injury, and it was the maximum benefit available to the employee.

However, the judge had not included a computation of the worker’s earning capacity, as is required by law. Both parties appealed to the reviewing board. The board then remanded the case, and the judge found that based on the prevailing minimum wage, the employee’s earning capacity was $320 per week for a period of her incapacity, and then $360 per week for the later period. The judge found that based on this earning capacity, the employee would receive $121.91 for approximately six months and then $97.91 per week continuing forward. She appealed, and the reviewing board affirmed the judge’s order.

The issue on appeal before the appellate court was whether the judge’s decision required reversal, based on the fact that it met the standard of “wholly lacking” evidentiary support or being tainted by legal errors. Using this standard, the court stated that there had been no error and affirmed the judge’s calculation.

First, the court stated the workers’ compensation law holds that employees who have a partial incapacity after suffering a workplace injury are entitled to a weekly compensation amount that equals 60% of the difference between their average pre-injury wage and the wage they are capable of earning after the injury, but the amount may not exceed more than 75% of what that employee may receive if they were eligible for total incapacity benefits.

Here, it had been stipulated, or agreed by both parties, that the injured worker’s weekly wage pre-injury was $523.19. But, the court held, when the judge awarded the maximum benefit award to the employee, she had not made a determination of the employee’s weekly earning capacity. Therefore, the court stated, there was no justification for assigning to the employee the maximum potential benefit.

If the employee had been eligible for total incapacity benefits, she would have received 60% of her average pre-injury wage ($313.91).  Partial incapacity benefits cannot exceed more than 75% of this award, and accordingly, her maximum eligibility was in fact $235.43 (which is 75% of $313.91).

In the first decision, the judge determined the employee was capable of performing limited work. On remand, to determine the employee’s earning capacity, the judge looked at evidence and credibility determinations.

Regarding the employee’s argument that by reducing her award, the judge’s second order opposed the first, the court stated that the second order instead “rectified” the missing information – a determination of the employee’s earning capacity.   This determination was not in opposition to any earlier order, since the earlier order had failed to include this determination.

In making a finding on the employee’s earning capacity, the judge had credited the orthopedist’s opinion that the injured worker was capable of performing limited work, and she could work full-time in a front desk or hostess position. After determining the employee’s earning capacity, the judge calculated the benefits award, making clear her factual sources for reaching a monetary number. According to the appellate court, there had been no error. The court upheld the decision.

If you have been hurt in a work accident or are suffering from a work-related medical condition, you may be eligible for compensation, including medical benefits and missed wages from work.  At the Massachusetts firm of Pulgini & Norton, our workers’ compensation lawyers represent individuals pursuing workers’ compensation benefits. To discuss your benefits claim with a skilled lawyer, call us at (781) 843-2200 or fill out our online form.

More Blog Posts:

Massachusetts Reviewing Board Holds that Judge Had Not Based Finding on Specific Facts Regarding Employee’s Repetitive Lifting and Weight, Massachusetts Workers’ Compensation Lawyer Blog, February 9, 2017

Massachusetts Reviewing Board Holds Missing Medical Evidence Requires Vacating the Decision Denying an Employee’s Claim for Benefits, Massachusetts Workers’ Compensation Lawyer Blog, February 3, 2017

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