Board No. 97672-87Commonwealth of Massachusetts Department of Industrial Accidents
Filed: February 22, 1995
REVIEWING BOARD:
Judges McCarthy, Fischel, and Wilson.
APPEARANCES:
James N. Ellis, Esq., for the employee.
Stephen Linsky, Esq., for the insurer.
McCARTHY, J.
On December 9, 1987, the employee, a brick mason, was being driven home from work by a fellow employee in a truck leased by the employer when a tire blew out and the employee was thrown from the truck, fracturing his back and right shoulder. Following a hearing on the employee’s claim for incapacity benefits,[1] the administrative judge found that the employee sustained a compensable injury on December 9, 1987 because an exception to the going and coming rule provides that the risk of an employee’s trip is a hazard of his employment and his injury is compensable when he is “compelled” to take the trip for the benefit of the employer. The judge found the employee was so compelled in this case where he was paid for his travel time to and from work each day and his co-worker was instructed to use the leased truck to transport the employee, who had neither a driver’s license nor transportation, to and from job sites. (Dec. 8-9.) The judge awarded § 34 benefits for temporary total incapacity from December 9, 1987 to April 16, 1988, and § 35 benefits for partial incapacity at a rate of $233.33 per week based on an average weekly wage of $500.00 and an assigned earning capacity of $150.00 from April 17, 1988 to August 9, 1989. (Dec. 11.)
The employee now appeals from the decision on grounds that the judge’s finding of partial incapacity for only a closed period was arbitrary, capricious and contrary to law because the employee continued to have a diminished earning capacity after August 9, 1989. The employee points not only to his reduced work hours in a new job but to his reduced average weekly wage to support his argument that his compensable injury resulted in continuing diminution of his earning capacity.
We find that the case must be recommitted to the administrative judge for further findings on the issue of average weekly wage and its effect on the award of partial incapacity benefits. The August 9, 1989 date chosen by the judge on which to cut off § 35 benefits was the date on which Dr. Beavers, for the insurer, opined that the employee was no longer disabled from work other than as a heavy laborer who would be required to lift more than fifty pounds. (See Dec. 5-6.) The judge found that the lifting restriction “did not preclude the employee from earning wages equal to those he earned prior to the motor vehicle accident as he is presently earning his pre-injury wages performing light duty work.” (Dec. 10; emphasis added.) This finding is not supported by the evidence. The judge also found that at the time of hearing the employee was working in a light duty job paying approximately $500.00 per week, and that the employee testified, “and I so find, that his wages fluctuated at Olson General Contractors due to overtime and weather conditions, but that his average gross wage was in the neighborhood of $500.00 per week.” (Dec. 7.) The finding as to the employee’s post-injury average weekly wage with the employer, Olson, is not borne out by the employee’s own testimony, which the judge found credible. (Dec. 6.) The employee testified that as a brick mason for the employer prior to the injury, he was required to lay 600 bricks per day (Tr. 7), averaged 60 hours of work per week (Tr. 8), and earned $900.00 to $1,000.00 per week at a rate of $17.00 per hour (Tr. 8-9). Prior to his industrial injury, the employee’s only work experience was as a brick mason performing heavy labor. Following the injury, he was restricted from heavy lifting, and, according to his testimony, was working in a job that paid $400.00 to $500.00 per week less than he was earning at the time of injury. Given that apparent diminution in his earnings upon returning to work, the judge’s finding of earnings parity seems unsupported by the record. Further, if the employee in fact continued to suffer an impairment of earning capacity after August 9, 1989, he was entitled to continuing § 35 benefits after that date. See Medley v. E. F. Hauserman Co., 7 Mass. Workers’ Comp. Rep. 97 (1993).
We recommit this case to the administrative judge for further findings on the issue of the employee’s average weekly wage and its effect on the date chosen for the termination of partial incapacity benefits.
Judges Fischel and Wilson concur.