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Workers’ Compensation Reviewing Board Upholds Award of Average Weekly Wage, Considers Issue of Earning Capacity

Many types of Massachusetts workers’ compensation benefits are directly paid after proof of treatment or travel is provided to the employer’s insurer. Some, like lost wages, require the application of a formula found in Massachusetts’ General Laws. This formula takes a percentage of the highest wage paid over a period of time and divides it by the number of weeks in this period to find what the injured employee’s Average Weekly Wage payout will be. A miscalculation can cause the employee to be underpaid or overpaid for a long period of time before correction. Fragile IceMany workers’ compensation awards go before the Reviewing Board or an appellate body to see if an employee has been overpaid benefits.

This can be seen in a recent Board decision (Bd. No. 00294-13). In this case, a medical health assistant was injured after she slipped on black ice at her workplace. This accident caused an injury to her back that was treated with injections, physical therapy, and diagnostic testing. This treatment occurred over two years, beginning with care performed by a nurse practitioner and eventually leading to a consultation with an orthopedic surgeon. During this period, she performed modified work at her original position, part-time bartending, and baby-sitting. Over a year after the accident, the injured worker went to an Independent Medical Examiner, who agreed with her treating physician that she had a lumbar spine strain with a small central disc protrusion. He also agreed that the workplace injury was the major contributing cause of her disability and need for treatment. The IME opined that she could still work a 40-hour work week with no repetitive stooping and bending, along with lifting and carrying restrictions.

At the hearing, the judge found the injured worker to be partially disabled with an earning capacity of $300 a week (20 hours a week at $15 an hour). The judge determined that the employee reached maximum medical improvement and that no additional treatment was needed. At the time, both parties agreed to her average weekly wage of $510.59, although a conference order provided her with an average weekly wage of $541.58. The judge recited that amount as part of the stipulation on record, and both parties agreed on the record to the sum of $541.58. On appeal, the insurer objected to the amount, asserting their original calculation was the correct one. The appellate court affirmed the higher amount awarded because both parties agreed when the judge read through the joint stipulations, which was the pertinent time to object.

The insurer also opposed the total set by the court for the injured woman’s earning capacity. In any workers’ compensation decision, the administrative judge must adequately reveal their findings. The Appeals Court agreed with the insurer that the maximum partial benefit awarded under Section 35 was inconsistent with the employee’s own testimony of earning $300 per week. The experts who testified at the hearing opined that the injured woman’s work was restricted, but no one said she would be unable to work a full 40-hour week. The court recommitted the case for new findings of fact on the issue of earning capacity, and it affirmed the other aspects of the administrative judge’s decision.

While workers’ compensation exists to aid injured workers, insurers have the goal of limiting payments to injured people. The Massachusetts workers’ compensation attorneys at Karsner & Meehan can help you push back against an insurer’s attempt to limit your benefits. Experienced counsel at your side will help you navigate the many nuances of workers’ compensation laws. Our attorneys have the experience you need to help maximize the benefits you deserve. Call our office today for a free, confidential consultation at 508.822.6600.

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