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Reduced Worker’s Benefits Award Addressed and Rectified Earlier Omission by Judge; Massachusetts Appellate Court Upholds Decision

A Massachusetts appellate court recently affirmed a decision by the Department of Industrial Accidents, Reviewing Board that reduced an injured employee’s initial weekly benefits award based on her work-related injury. According to the appellate court, the judge’s second order had not been “in opposition” to the earlier order but had addressed and rectified the omitted calculation of the employee’s earning capacity. In other words, while the second order did reduce the weekly workers’ compensation benefits paid by the insurer to the employee, this was only because the first order had erred by not factoring the employee’s earning capacity into the award.

After alleging that she had suffered from bilateral carpal tunnel syndrome since June 2011, the workers’ compensation claimant in this case filed a workers’ compensation claim in July 2011. She claimed total temporary incapacity as a result of her injury.

According to Massachusetts workers’ compensation laws, an administrative judge had held a hearing and ultimately ordered that the insurer pay the worker $253.43 per week. This award had not included a calculation of the employee’s earning capacity, according to law. Both parties appealed to the reviewing board.

The board then sent the case back for the judge to make factual findings regarding the employee’s earning capacity. Based on the fact that the employee worked 40-hour weeks and that the minimum wage was $8 per hour and then $9 per hour, the judge stated her earning capacity was $320 for the initial period of incapacity and $360 for the later part. The insurer was ordered to pay the employee $121.91 for the period from June to December 2014 and $97.91 from that date forward. The employee appealed this decision to the reviewing board, which affirmed. She again appealed.

The standard for the appellate court to reverse the lower court’s decision is that the decision must be entirely lacking evidentiary support or tainted by legal errors. Applying this standard to the administrative judge’s order, the court found that the second decision had simply “rectified” the earlier decision.

Massachusetts law provides that employees who are rendered partially disabled due to a workplace injury are entitled to 60 percent of the difference between their average weekly wage pre-injury and the weekly wage they are capable of earning post-injury. However, this amount cannot be more than 75 percent of the amount the employee would receive under total incapacity benefits.

The court stated that pre-injury, the employee had earned $523.19. If she were eligible to receive total incapacity benefits, she would have received 60 percent of this amount, $313.91. According to Massachusetts law, her benefits could not exceed this amount. Therefore, her maximum eligibility was $235.43.

Since the judge had determined that the employee could perform limited work, they had assigned her the maximum workers’ compensation benefit amount. But, the court stated, there was no justification for assigning this amount because there was no determination of her weekly earning capacity.

When the case had been recommitted by the board, the appellate court stated that the purpose was to make further findings, since there was no evidence supporting the assessment of earning capacity. The second order included this determination of the employee’s earning capacity and was a “rational extension” of the first order, according to the court.

Noting that the testimony supported the judge’s earning capacity calculation, the court here stated that there had been testimony from an orthopedist who concluded the employee could perform limited work. Additionally, a vocational rehabilitation consultant opined that the employee could work in a hostess or front desk position full-time. She would earn $8 to $12.60 in one of those positions.

The employee’s benefits award was calculated after the judge addressed her omission, explaining the sources and applications for her final figure. The court found there had not been any error, and it affirmed the decision of the reviewing board.

At the Boston Law Offices of Attorney Michael O. Smith, we assist injured workers in seeking benefits, including medical expenses and lost wages, for work-related injuries and medical conditions. We are ready to provide skilled legal representation and guidance, aiming to maximize your benefits award according to Massachusetts law. Call our office today to set up a free consultation with a workers’ compensation attorney. We can be reached by phoning (617) 263-0060.

More Blog Posts:

Discrepancy Between Employee’s Statements and Judge’s Findings Required Recommital of Case, According to Massachusetts Reviewing Board,Boston Workers’ Compensation Attorney Blog, February 21, 2017

Massachusetts Workers’ Compensation Judge Failed to Consider Parties’ Additional Medical Evidence at Hearing; Reviewing Board Vacates Decision Denying Employee Benefits,Boston Workers’ Compensation Attorney Blog, February 7, 2017

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