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.