HUGHES v. D D ELECTRICAL CONTRACTORS, INC., No. 06872791 (Jun. 12, 1997)

BOARD No. 06872791Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 12, 1997

REVIEWING BOARD DECISION

(Judges Fischel, Wilson and Levine)

APPEARANCES

Christopher Pilavis, Esq., for the employee

David W. Perry, Esq., for the insurer

WILSON, J.

We have before us cross appeals of a decision in which an administrative judge determined that the employee was entitled to payment of continuing weekly benefits for partial incapacity, based on his average weekly wage as expected to increase pursuant to G.L.c. 152, § 51. We summarily affirm the decision in all respects, except for one issue raised by the employee. We reverse the date on which the § 51 adjustment commences, and conclude that the entitlement occurred on December 31, 1993, the only possible date on this record.

The employee injured his hand while working as an electrician on October 22, 1991. (Dec. 3, 4, 8.) The insurer paid weekly benefits for total, temporary incapacity under § 34, and then in 1994 requested a modification or discontinuance of payments, which was denied at the § 10A conference. (Dec. 2.) The insurer appealed to a hearing de novo, and the employee joined claims for an adjustment in his average weekly wage under G.L.c. 152, § 51 and for weekly benefits under § 34A.[1] (Dec. 2.)

At hearing, the parties stipulated that the employee’s present disability was causally related to his 1991 industrial injury, and that according to his wage schedule the employee’s 1991 average weekly wage was $497.13. (Dec. 3.) Among other issues at hearing was the employee’s entitlement to an increase in his average weekly wage under § 51. (Dec. 2.) With regard to this issue, the judge determined that the twenty-eight old employee had completed a two year course at Coyne Electrical School, had taken continuing courses at that school, began as an apprentice electrician and was a licensed electrician at the time of his 1991 industrial injury, earning $13.75 per hour. (Dec. 4.) The judge found that the employee subsequently completed the necessary course work to take the master electrician’s licensing examination in 1992-1993. (Dec. 4.) We note that the record indicates that the employee passed the examination. (Tr. 17.) The judge also found that the employee had earned $19.25 as an electrician and supervisor at Sylvania Electric prior to that company’s going out of business and the stipulated 1991 injury. (Dec. 4.) The judge concluded that the employee had met the prerequisites of § 51 applicability: that the employee had embarked on a career as an electrician after high school, had successfully completed various steps in this career, including the examination to become a master electrician and, but for his disability related to his working as an electrician, would likely have earned a higher wage than that which he earned at the time of his industrial injury. (Dec. 9-10.) We cannot say this is error in light of the employee’s pre-injury age and experience, which set the course for a natural progression in his trade. The judge determined that the employee had proved that he would have expected an increase of his hourly wage to at least $19.25, and that such wage was effective as of May 4, 1995, the hearing date. The judge, finding that the employee’s impairment would likely preclude return to work as a construction electrician and that he would need a job with lower strength requirements, then ordered § 35 benefits, based on a $240.00 earning capacity and the increased average weekly wage of $770.00 pursuant to § 51, to be paid as of the date of the impartial medical examination, January 31, 1995.[2] (Dec. 5, 10.)

The date of the impartial examination cannot serve as a basis for assignment of a § 51 adjustment to the employee’s average weekly wage. Neither that date nor, alternatively, the hearing date has any relevancy to the § 51 inquiry of when, “under natural conditions, in the open labor market, [the employee’s] wage would be expected to increase . . . [;]” in other words, when the employee’s skills were enhanced. On the record before us, the conclusion must be that the employee is entitled to the increased § 51 average weekly wage of $770.00 no sooner than December 31, 1993. In view of the employee’s burden of proving every element of his claim, we note that this date represents the last possible date supported by the pertinent evidence: that the employee completed the required courses and passed the examination to become a master electrician in 1992-1993. (Dec. 4; Tr. 17.) It is this stage of career advancement to which the judge correctly attached the employee’s expectation of a wage increase under § 51. (Dec. 9-10.)

Since the evidence on this record supports the assignment of the $770.00 average weekly wage pursuant to § 51 in 1992-1993, we reverse the decision insofar as it applies that adjustment as of January 31, 1995, the date of the impartial examination and the judge’s reduction of weekly benefits from § 34 to § 35 based on that examination. (Dec. 10.) We order payment of § 34 benefits augmented pursuant to § 51 from January 1, 1994 until January 31, 1995, after which the employee shall receive § 35 benefits based on the $770.00 average weekly wage and $240.00 weekly earning capacity.

We otherwise affirm the decision. The insurer shall pay an attorney’s fee of $1,000.00.

So ordered.

_________________________ Sara Holmes Wilson Administrative Law Judge
_________________________ Carolynn N. Fischel Administrative Law Judge
_________________________ Frederick E. Levine Administrative Law Judge

Filed: June 12, 1997