In a recent Massachusetts workers’ compensation case, the Reviewing Board analyzed an appeal by an insurer dissatisfied with a hearing decision. The insurer alleged the judge incorrectly used the wage amount of $1,726.37 to calculate the weekly wage paid to the injured carpenter. The insurer argued the employee was not entitled to the award, since there was no appeal of the conference order. The insurer felt the employee could only use the maximum amount of $1,490.33 to calculate his entitled average weekly wage.
The injured carpenter was hurt in an industrial accident while moving a piece of machinery. The machinery began to tip, he grabbed it, and he caught his ring on the machine. The employer didn’t dispute liability and agreed to initially pay an average weekly wage of $800 a week. The injured employee eventually sought an adjustment, which was at the center of this action. The carpenter initially asked for an average wage of $1,505.09 a week, and he submitted an IRS Form 1099 for checks from his employer, payable to him for 35 out of 52 weeks prior to the injury, as proof. The claim was then withdrawn in October 2012.
In November 2012, the injured man refiled a claim for an adjustment, this time requesting an average weekly wage of $1,490.22 per week. As proof, the employee submitted the same 35 weeks’ worth of checks. This claim was also withdrawn, but he eventually refiled a year later. This third attempt at a readjustment claim was for the same amount, and this was accompanied by medical reports and a 2011 tax return. This amount was sent to a conference. After the conference, the administrative judge ordered $1,490.33 to be used as the weekly wage amount. The insurer appealed, but the employee did not.
At the hearing, the employee testified and had his boss testify to the amount he was paid prior to the accident. The insurer focused on whether or not the employee had been working at a different company, which would lower the weekly wage to a little over $650.00 a week. The judge rejected this assertion and instead found that the amount stipulated by the employee in the original hearing was an approximation.
The judge applied the carpenter’s wage of $47 an hour to the 1,914.5 hours worked during the 52-week period preceding the injury. The judge lowered the amount to $1,726.27 a week after he determined the employer failed to take out Social Security or Medicare. The insurer appealed the $1,726.27 amount in the average weekly wage calculation. The insurer argued this number was unavailable, since the employee did not appeal the originally ordered $1,490.33 amount calculated. Without a formal appeal, the worker is deemed to have accepted the administrative judge’s order. However, if the injured worker has made a mistake or had a reasonable cause for failing to appeal within a year, they may petition the commissioner of the department for a hearing.
The employee argued he mistakenly relied upon the Form 1099 from 2011 to calculate his federal income tax return, which eventually caused him to reply with an incorrect number for his average weekly wage calculation. The reviewing board disagreed, finding the employee did not find new evidence. The employee attempted to counter, saying the evidence he needed was unavailable for a long period of time, but the board ultimately ruled against him. The board found that evidence is not newly discovered, even if it was unavailable and unknowable during trial, if it was something that could be anticipated and discoverable through due diligence.
The reviewing board agreed with the insurer’s argument that the amount should be limited to the $1,490.33 amount from the original conference. The judgment of the administrative judge was affirmed, and the wage remained static.
The Massachusetts workers’ compensation attorneys at Karsner & Meehan can assist you with your workplace claim. Call our office today at 508.822.6600.
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