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Consistent with Appellate Practice, Massachusetts Review Board Upholds Conference Order Awarding Employee’s Average Weekly Wage

In a recent appeal involving a dispute over an injured employee’s weekly wage, the Massachusetts Department of Industrial Accidents, Reviewing Board, held that since the employee had not appealed a conference order, he was not entitled to a better result than what he had received in that order.   The Board examined whether the judge had properly adjusted the employee’s award upward, without an appeal by the employee.In this case, the employee worked as a carpenter and was injured at work when moving a large piece of machinery that tipped.  His claim for benefits was granted, since there was not a dispute regarding his coverage under workers’ compensation, nor was there a dispute regarding liability for his injury.  After the insurer for his employer began paying weekly benefits, based on a weekly wage of $800.00 a week, the employee then sought an adjustment to his wage.

The employee filed a claim, seeking to adjust his weekly wage to reflect his “estimated” weekly wage of $1,490.22.  He had submitted medical reports and a 1040 U.S. Tax Return in support of his claim.  At a conference, the two parties executed an opt-out agreement that stated no impartial medical examination was necessary, since a medical issue was not in dispute.

The judge issued an order that required the insurer to pay the employee weekly benefits, based on a weekly wage of $1,490.33, the amount the employee claimed on his Conference Memorandum.  The insurer appealed, but the employee did not file an appeal. He did not file notice of a late appeal either.

At a hearing, the insurer argued that it had paid the employee as an employee of an uninsured subcontractor. According to the Board, much time was spent on this issue of employment status. In his decision, the judge stated that the employee’s weekly wage was $1,726.37.  The insurer appealed, arguing that at best, the employee was entitled to his average weekly wage of $1,490.33, as set forth in the conference order.

The applicable law states that when a party fails to timely appeal a conference order, they will be deemed to have accepted the judge’s findings and order.  The Board stated that the conference order in this case had provided the relief that the employee sought. Since the employee had not appealed that order, nor had he sought leave to file a late appeal, the Board affirmed the award of the average weekly wage of $1,490.33.

At the Boston Law Offices of Attorney Michael O. Smith, we can help injured workers seek maximum benefits, including lost wages and medical expenses, after suffering an industrial accident.  Our skilled legal representation and guidance has helped employees and their families throughout Massachusetts.  We provide a free consultation with a workers’ compensation lawyer, and we can be reached by phoning (617) 263-0060 or online.

More Blog Posts:

Massachusetts Workers’ Compensation Judge Misstated Medical Complexity Standard, But Employee Not Entitled to Costs for Hip Replacement Because no Abuse of Discretion, Boston Workers Compensation Attorney Blog, May 24, 2017

Reduced Worker’s Benefits Award Addressed and Rectified Earlier Omission by Judge; Massachusetts Appellate Court Upholds Decision, Boston Workers Compensation Attorney Blog, March 2, 2017

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