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Wage Enhancement in Massachusetts’ Workers’ Compensation Cases

A 2012 Massachusetts Supreme Judicial Court case arose back in 1980 when a 22-year-old employee of a concrete pipe company experienced an accident at work. His hand was crushed in a metal rolling pin. He received temporary and total incapacity workers’ compensation benefits for eight years. He then found employment with an auto supply company where he worked first as a driver and then as a counter person.

The plaintiff worked in spite of his pain. Eventually one of his knuckles had to be replaced with an artificial joint and he had to have a procedure for extreme pain in his hand and arm. He applied for total and permanent disability benefits.

Among other things, the plaintiff claimed that he was of an age and experience that in the ordinary course of events, his wage would have been expected to increase. He argued he was entitled to have a wage increase considered under G. L. c. 152, § 51. He also claimed that under G. L. c. 152, § 35B he was entitled to compensation at the rate in effect in 2003 because his permanent disability arose from a recurrence of his 1980 injury after coming back to work for two months.

An administrative judge found that if not for his industrial accident, the plaintiff’s wages would have increased. The judge awarded him total and permanent incapacity benefits, taking the increase into account.

The insurer appealed to the reviewing board. The board affirmed the permanent benefits but reversed the amount of compensation owed. Among other things, it ruled that there was no evidence the wages would have increased because it was not anticipated at the time of injury that the employee would develop any particular skill.

An appellate court affirmed the board’s decision in multiple respects. The Supreme Judicial Court reviewed the case. It explained the board had erred in finding that compensation was based on an average weekly wage earned in 1980 rather than the 2003 weekly wage he had earned out-of-state at the time the injury recurred.

The Court also explained that workers’ compensation did not generally compensate for the injury alone, but for the loss of earning capacity during a period of disability or incapacity. If an injured employee wanted the judge to consider that his wage would have increased, the employee had to present evidence that he was on a path before the injury such that his wages would have increased based on acquiring or developing particular skills or education.

An example of a career path subject to wage enhancement under § 51 would be where a worker started as an apprentice and was expected to become a journeyman and then a master. An employee seeking wage enhancement under § 51 had to show that his earning capacity would have increased beyond the rate of inflation and that he had taken tangible steps to achieve his aspirations before the injury.

In this case, the employee had started as a farmhand. In high school he had taken a variety of work, including short-order cook and spot welding. He had taken no steps to obtain his GED or to get special training in welding. Therefore the Court ruled there wasn’t enough evidence to show he was eligible for wage enhancement under § 51.

If you have been injured on the job or while acting for your employer’s benefit, the help of an experienced workers’ compensation attorney can make a big difference to your case. Contact Boston workers’ compensation attorney Michael O. Smith at 617-263-0060 or via our website for a consultation.

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