Lawrence Richards, Employee v. Walbaum’s Food Mart, Employer, Great A P Tea Company, Insurer

Board No. 7405789Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 29, 1996

REVIEWING BOARD DECISION

(Judges Kirby, Smith and Maze-Rothstein)

APPEARANCES:

Gerard Pellegrini, Esquire, for the employee

Ronald St. Pierre, Esquire, for the insurer

KIRBY, J.

This is a cross appeal from the administrative judge’s decision that ordered the self-insurer to pay several closed periods of compensation terminating on the date of the judge’s decision. The self-insurer seeks reversal of the decision, in part, contending the judge erred in miscalculating the employee’s average weekly wage and in incorrectly stating that G.L.c. 152, § 51[1] was in issue. The employee appeals arguing that the judge erred in terminating all benefits from the effective date of his decision without evidence the employee’s disability ended on that date. We find merit in the argument of the insurer, but, because there will be a hearing de novo we do not address the employee’s argument. We affirm the decision in part and vacate and remand in part consistent with this opinion.

The employee worked for the employer as a stock clerk beginning on August 4, 1989, earning $5.85 an hour. (Dec. 3.) If the employee had completed a satisfactory ninety day probationary period he “was expected” to join a union, raising his pay to $12.00 an hour. Id.

On September 16, 1989, before the ninety days were up, a sixty pound bale of sugar fell six feet off a rack striking the back of the employee’s head, neck and shoulder while he was unloading merchandise from a truck. (Dec. 3, 5.) The employee filed a claim for G.L.c. 152, § 34 temporary and total compensation due to his injuries. On March 30, 1990, following a § 10A conference on the contested claim, the judge ordered the self-insurer to pay § 34 benefits at a weekly rate of $186.67 based on an average weekly wage of $280.00 from January 13, 1990 and continuing. (Dec. 1.)

The insurer appealed from the order and a full evidentiary hearing was conducted on June 7, 1990. At that hearing, the parties stipulated that the employee’s average weekly wage was $275.00 on September 16, 1989, the date of injury. (Dec. 2.)

The judge issued his decision on July 12, 1991. In that decision, he listed the employee’s claims as “under Sections 34, 13, and 30, and 51.” (Dec. 1.) The record is not clear as to whether § 51 had been raised before him at hearing. (Dec. 1, 6-7; see Tr. 3.)

The judge made detailed subsidiary findings on the medical evidence before him, including that the employee sustained a soft disc herniation at C6-7 in the course of his employment on September 16, 1989, which necessitated surgery. He adopted the opinion of Dr. Reiss, who had treated the employee and performed the discectomy, on the issues of causation and disability. (Dec. 5.) Relying on Dr. Reiss’ December 5, 1990 depositional testimony, the judge found that the employee had a period of total incapacity from September 16, 1989 to October 2, 1990 and adopted Dr. Reiss’ opinion that as of October 2, 1990, the date of his last medical examination, the employee could perform part-time work not involving extension of his arms over his head, hyperextension of the back, heavy lifting, repeated impact on the feet or prolonged sitting or driving. (Dec. 4.) Dr. Reiss further opined that as of October 1990, the employee was not capable of doing the same work he was doing before his September 1989 injury. (Reiss Dep. 35-37.) The judge also adopted the opinion of Dr. Reiss, as stated in his September 6, 1990 report, that he believed the employee would be able to return to full work in approximately six to nine months. (Dec. 5; Employee’s Ex. 2, at 3.) As of his December 1990 deposition, the doctor indicated the employee still had significant restrictions. (Dep. 13-17, 37.)

On these findings, the judge ordered § 34 benefits at $186.67 weekly, based on the stipulated average weekly wage of $275.00 from September 16, 1989 to November 4, 1989. (Dec. 6.) Also finding that if the employee had not been injured he “would have most likely been accepted into the appropriate union and earned a salary of $12.00 an hour (or $480.00 for a forty-hour week) as of November 4, 1989”, he ordered further § 34 benefits of $320.00 weekly, based on an increased average weekly wage of $480.00 from November 5, 1989 to October 2, 1990. (Dec. 5-6.) He added that “[i]n so finding, I have taken into consideration the fact that the Employee’s testimony regarding his conditions of employment was left uncontested.” (Dec. 6.)

Finally, for the period from October 3, 1990 to July 12, 1991, the date of decision, the judge ordered § 35 partial incapacity benefits of $153.33 weekly based on the increased average weekly wage of $480.00 and an assigned earning capacity of $250.00. Id. He terminated all benefits as of the date of his decision, finding that the employee “is no longer disabled and capable of full return to the work force.” (Dec. 5.)

The self-insurer argues that it was prejudiced by late notice of a § 51 claim and that it was raised for the first time at hearing. It further argues that, in any case, the judge erred in increasing the average weekly wage based on nothing more than an expectation of a union contract following a ninety day probationary period where there was no guarantee of continued employment. See G.L.c. 152, § 1(1). The employee also contends that the judge erred in terminating benefits on the date of his decision. We address these issues in turn.

As to when § 51 was brought into issue and whether it was properly
before the judge, we note that although the decision lists § 51 as in issue, the hearing transcript contains the judge’s preliminary statement as to the employee’s claims: “[i]n this proceeding the employee is claiming Section 34 benefits from September 16, 1989 to date and continuing, as well as benefits under section (sic) 13 and 30.” This omission of mention of § 51 is significant. The record shows no earlier claim or proceedings under that section. During the employee’s direct examination by his counsel, he testified that had he continued to work for the the employer, he would have been eligible for union membership at considerably higher pay after ninety days. He also stated that he had worked for four weeks there until the time of his injury, for eight to ten hours a week. (Tr. 6, 7.)

If this testimony is taken as a signal that a claim would be made under § 51, it may well have been a surprise to the insurer, as indeed it would be if first raised at hearing in an off-the-record colloquy as mentioned by the insurer. (Insurer’s brief, at 1.)

Without stating explicitly he was acting under § 51, the judge ordered higher compensation beginning on November 5, 1989, the date on which the employee’s probationary period would have ended, according to his testimony, had he continued to be employed. Thus it is a fair inference that the judge applied § 51 in his decision, resulting in a surprise to the insurer, which was required to deal with the issue that had been raised without adequate notice.

A party may be afforded relief where there is mistake, inadvertence, surprise or even excusable neglect. See Berube v. McKesson Wine SpiritsCo., 7 Mass. App. Ct. 426, 429 (1979); see also Haley’s Case, 356 Mass. 678, 682 (1970) (party entitled to notice, opportunity to rebut evidence, and argue issues of fact and law). On the subsidiary findings in this case, it is impossible to ascertain with any certainty whether the self-insurer was unfairly surprised by the § 51 issue.

As to the insurer’s second concern, that is, whether § 51 was properly applied, we are unable to ascertain whether the judge’s apparent application of § 51 influenced in any way his decision to assign the higher earning capacity of $250.00 from October 3, 1990 to July 12, 1991. See Praetz
v. Factory Mut. Eng’g Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1994).

Notwithstanding the lack of clear basis for increasing the employee’s average weekly wage from November 5, 1989 forward, and assigning him an earning capacity of $250.00 per week, from October 3, 1990 forward we note that because the case will be heard de novo, the issue of how the union contract affects the employee’s average weekly wage still will need to be decided if that issue is put before the judge. Under § 51, the employee must establish that: 1) his wage could reasonably have been expected to increase; 2) under natural conditions; 3) in the open labor market; 4) considering his present age and experience; and 5) shall not be limited to the circumstances of the employee’s particular employer or industry at the time of injury.[2] See supra note 1. Only after making findings on these factors, may the judge apply § 51 in determining a present average weekly wage based on future earnings.

The employee merely offered evidence of a union contract expectation without any evidence as to its relationship to the elements required for a successful § 51 claim. (Dec. 3, 6; Tr. 7, 30-31.) Although expectation of a union contract could be considered in making a § 51 determination, it cannot in isolation support a favorable § 51 finding.

On remand, the judge is to consider both the employee’s medical condition as well as his age, experience and other vocational factors in accordance with Scheffler’s Case, 419 Mass. 251, 256-257 (1994), in assessing the issue of incapacity and whether or when it ended. SeeFrennier’s Case, 318 Mass. 635, 639 (1945); Lally v. K.L.H. ResearchDev., 9 Mass. Workers’ Comp. Rep. 427, 429 (1995). Here, the judge based his conclusion on the medical evidence without sufficient findings on its impact on the vocational component.

In summary, we affirm the judge’s decision that the employee sustained a work-related injury on September 16, 1989. We affirm the award of § 34 benefits until October 2, 1990 and the award for ongoing § 30 medical benefits as these awards are supported in the record. We reinstate the stipulated average weekly wage of $275.00 up to October 2, 1990.

We vacate the judge’s decision as to compensation after October 2, 1990 because the calculation of the $480.00 average weekly wage may have been a component in the judge’s assignment of the $250.00 earning capacity as of that date. On remand, the judge must establish the correct average weekly wage and the extent of incapacity from October 3, 1990 forward. Upon taking further evidence on the matter, the judge should determine whether § 51 as amended by St. 1991, applies to the employee’s future earnings.

Our decision on the insurer’s appeal renders the employee’s appeal moot.

As the judge who heard this case is no longer with the department, we forward this matter to the Senior Judge for reassignment for a hearing denovo, consistent with his opinion.

_________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge

Filed: March 29, 1996

[1] Section 51, inserted by St. 1915, c. 236, applicable on the date of hearing and decision, provides:

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, his wages would be expected to increase, that fact may be considered in determining his weekly wages. G.L.c. 152, § 51 was amended by St. 1991, c. 398, § 78. See Sliski v. Doane Williams, 7 Mass. Workers’ Comp. Rep. 249 (1993) (discussing application of § 51, which was deemed procedural).

See infra note 3.

[2] Section 51, as in effect at the time of hearing and decision, was amended by St. 1991, c. 398, § 78. It now provides:

“Whenever an employee is injured under now circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee’s benefits under this section shall not be limited to the circumstances of the employee’s particular employer or industry at the time of injury.”
This 1991 amendment was deemed procedural and on remand, if Section 51 is brought before the judge and adjudicated, it is this amendment that would apply. See Sliski
v. Doane Williams, 7 Mass. Workers’ Comp. Rep. 249, 253 (1993). This case is now on appeal to the Massachusetts Appeals Court.