Board No. 16756-90Commonwealth of Massachusetts Department of Industrial Accidents
Filed: September 17, 1996
REVIEWING BOARD DECISION
(Judges McCarthy, Smith and Maze-Rothstein)
APPEARANCES
Leo F. Roche, Jr., Esq., for the employee
Robert P. Snell, Esq., for the insurer on appeal
Joanne T. Marchi, for the insurer at hearing
McCARTHY, J.
The employee appeals from a decision in which the administrative judge awarded § 34 temporary total incapacity benefits at the weekly rate of $256.00 based on the stipulated $400.00 average weekly wage on the February 14, 1990 date of injury. We agree with the employee that the compensation rate assigned is incorrect. We therefore order compensation to be paid at the correct weekly rate of $266.66, from February 10, 1992 until August 26, 1993.
The decision is otherwise affirmed.[1]
__________________________ William A. McCarthy Administrative Law Judge
__________________________ Susan Maze-Rothstein Filed: September 17, 1996 Administrative Law Judge
6 Mass. Workers’ Comp. Rep. 241 (1992), had interpreted the newly enacted provision for discontinuance in the event of an employee’s incarceration as prospective and inapplicable to dates of injury prior to December 23, 1991. However, the Supreme Judicial Court in Connolly’s Case, 418 Mass. 848 (1994), reversed the reviewing board and allowed the retroactive application of the 1991 addition of subsection (j) to § 8 (2). While we appreciate the judge’s reliance on the reviewing board’s interpretation of § 8 (2)(j), it now turns out that we led him into error. Presumably the parties have made the necessary financial adjustments. If not, it is of course open to the insurer to file a claim to redress the error.
Smith, J. concurring.
I concur in the order correcting the compensation rate but find that it is appropriate and judicially efficient to remand for further findings of fact pursuant to G.L.c. 152, § 11C to determine the amount actually due the employee.
Fuschetti was incarcerated pursuant to a conviction for a felony on December 11, 1990 and released on May 15, 1993. The insurer unilaterally discontinued benefits on February 10, 1992 when it learned of the incarceration. The employee filed a claim for benefit restoration and a penalty, claiming that the insurer’s unilateral discontinuance was illegal.
Following the instruction of the reviewing board in Connollyv. Wire and Metal Separation Systems,
6 Mass. Workers’ Comp. Rep. 241 (1992), the judge found that the insurer was not entitled to the benefit of G.L.c. 152, § 8 (2)(j). He ordered the insurer to pay § 34 total compensation from February 10, 1992 (the date of unilateral termination) until August 26, 1993 (the date of the impartial medical examination) and ongoing § 35 partial compensation thereafter, together with a penalty of 20% of the amount of unpaid compensation.
In light of Supreme Judicial Court’s decision in Connolly’sCase, 418 Mass. 848 (1994) reversing the reviewing board, it is clear that the judge’s finding of an illegal discontinuance during the employee’s imprisonment and his awards of a § 8 (5) penalty therefore and of § 34 temporary total weekly compensation during the imprisonment period were contrary to law. Substantial justice requires that these erroneous awards not be included in calculating any amount due the employee pursuant to our order correcting the compensation rate.
Furthermore, it is unclear from the decision whether the judge placed the proper burden of proof on the employee with regard to his claim of benefits after his release from jail. The judge may have merely ruled that the employee was entitled to total benefits from the date of his prison release because the benefit discontinuance had been illegal. The employee has the burden of establishing the nature and extent of his incapacity on and after the date of his release from prison. Because of this ambiguity in the decision, the case should be remanded to determine the nature and extent of incapacity on and after May 15, 1993 when the employee got out of jail.
I join in the majority’s order correcting the compensation rate.
________________________ Suzanne E.K. Smith Administrative Law Judge