After a workplace injury, a worker is entitled to receive a weekly wage that’s calculated by plugging the worker’s earnings into a formula under Massachusetts G. L. c. 152, § 35D. A partially incapacitated worker may receive 60% of the difference between the average weekly wage before the injury and the weekly wage the worker is capable of earning after the injury. This is not to exceed 75% of the amount she or he would receive if deemed totally incapacitated. A recent Appeals Court case, Lavalley’s Case (16-P-46), assessed an earning capacity calculation for a worker suffering from bilateral carpal tunnel syndrome.
In this lawsuit, the administrative law judge (ALJ) initially ordered the insurer to pay $235.43 a week in partial benefits. However, the order did not include the calculation under G. L. c. 152, § 35D, and both parties appealed to the Reviewing Board. After the Reviewing Board remanded the lawsuit down to the ALJ for further findings of fact, the ALJ found that the insurer was only required to pay $121.91 from the day the injury began on June 1, 2011 to December 31, 2014. The insurer was then required to pay $97.91 from January 1, 2015 forward. The worker appealed this order to the Reviewing Board, which affirmed the ALJ’s calculation. The injured worker then appealed the Reviewing Board’s decision.
In its review, the Appeals Court first established that the decisions of the Reviewing Board are not overturned unless there was no evidence supporting the ruling, or the decision was tainted by errors of law. At the initial hearing, the ALJ made a finding that the injured worker could perform light work and granted her the maximum amount of weekly wage under the law. However, the ALJ did not attach the corresponding calculation with this finding. On remand, the judge used the same evidence that was presented at the first hearing but came to a different conclusion and ordered the lesser amount. The injured worker argued that the second order went against the first and that the ALJ was obligated to hear new evidence.
The Appeals Court disagreed, finding that without a determination at the first hearing, there was nothing for the second order to contradict. The appellate court looked at the second order as rectifying the omission. At the first hearing, an orthopedist testified that the injured worker could still perform limited work. A vocational rehabilitation witness also opined that the injured worker could still work as a front desk clerk, a greeter, or a hostess and earn between $8 and $12.60. The Appeals Court felt this testimony and evidence supported the ALJ’s calculation in the second order. The decisions of the ALJ and the Reviewing Board were upheld, and the injured worker’s weekly wages remained at the lower amounts.
Lavalley’s Case illustrates how Massachusetts workers’ compensation has several components to consider. The experienced workers’ compensation attorneys at Karsner & Meehan are here to help you with your claim. Call our office at 508.822.6600 for a free, confidential consultation.
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