Taylor's Case

691 N.E.2d 997, 44 Mass. App. Ct. 495, 1998 Mass. App. LEXIS 102
CourtMassachusetts Appeals Court
DecidedApril 2, 1998
DocketNo. 97-P-0264
StatusPublished
Cited by17 cases

This text of 691 N.E.2d 997 (Taylor's Case) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor's Case, 691 N.E.2d 997, 44 Mass. App. Ct. 495, 1998 Mass. App. LEXIS 102 (Mass. Ct. App. 1998).

Opinion

Spina, J.

The defendant insurer appeals a decision of the reviewing board (board) of the Department of Industrial Accidents that permitted Joseph Taylor, the employee, to elect to avoid the operation of G. L. c. 152, § 35B, in order to receive benefits at the rate in effect at the time of his original injury, rather than at the rate in effect at the time of the recurrence of that injury. We reverse.

The facts are not disputed. Taylor suffered a work related injury to his lower back on March 31, 1991. He received temporary and total incapacity benefits under G. L. c. 152, [496]*496§ 34,1 in the amount of $320.51 per week, based upon 66 2 3/s% of $480.77, his average weekly wage at the time of his injury. He underwent a laminectomy at the L 4-5 level and was able to return to full-time, modified employment on August 18, 1991. In December, 1991, the workers compensation statute was amended so as to reduce benefits. St. 1991, c. 398. Taylor continued working2 until May 15, 1993, when his condition again worsened. He commenced physical therapy and was only able to work part-time. He also began receiving partial incapacity benefits at that time, pursuant to G. L. c. 152, § 35. On December 14,1993, Taylor underwent a third surgical procedure, and he has not returned to work. His average weekly wage as of that date was $563.30. Since December 14, 1993, Taylor has received temporary and total incapacity benefits under § 343 in the amount of $337.98, based upon 60% of his average weekly wage of $563.30.

There is no dispute that Taylor’s condition as of December 14, 1993, was a subsequent injury in the form of a recurrence of his injury of March 31, 1991. Both Taylor and the Insurer assumed the terms of G. L. c. 152, § 35B, applied to his § 34 claim. That statute, as inserted by St. 1970, c. 667, § 1, states as follows:

“An employee who has been receiving compensation under this chapter and who has returned to work for a [497]*497period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.”

Taylor contended that he was entitled to 66 2/s% of his average weekly wages as of December 14, 1993, or the pre-1991 percentage factor applied to his post-1991 wages. The insurer applied the 60% rate found in G. L. c. 152, § 34, as amended by St. 1991, c. 398, § 59. Taylor appealed the action of the insurer. An administrative judge agreed with the insurer. Taylor appealed to the board, which affirmed the decision of the administrative judge. However, without the issue having been raised by either party, a majority of the board determined that Taylor should be permitted to elect whether § 35B would apply. It gave him leave to reopen his case, retract his claim under § 35B within sixty days of the filing of the board’s decision, and seek compensation under § 34 at the rates in effect at the time of his original injury. The insurer appeals from that decision.

The issues presented in this appeal are (1) whether the board may allow a party to reopen his casé to pursue an unasserted claim, and (2) whether G. L. c. 152, § 35B, is elective.

1. Authority of the board. The board is an administrative tribunal and, accordingly, “possesses only such authority and powers as have been conferred upon it by express grant or arise therefrom by implication as necessary and incidental to the full exercise of the granted powers.” Levangie’s Case, 228 Mass. 213, 217 (1917). Hansen’s Case, 350 Mass. 178, 180 (1966). The powers of the board are set forth in G. L. c. 152, § 11C, as amended by St. 1991, c. 398, § 31, and are, in relevant part, as follows:

“The reviewing board shall reverse the decision of an administrative judge only if it determines that such administrative judge’s decision is beyond the scope of his authority, arbitrary or capricious, or contrary to law. The reviewing board may, when appropriate, recommit a case before it to an administrative judge for further findings of [498]*498fact. Where the reviewing board affirms the decision of an administrative judge, it may do so in summary fashion and without discussion of the issues raised on appeal.”

Here, the board unanimously affirmed the decision of the administrative judge. However, a majority of the board, sua sponte, fashioned what it acknowledged was an “unusual disposition,” and gave Taylor leave to reopen his case in order to retract his § 35B claim.

Taylor had only sought the application of the 66 2h% factor to his average weekly wage as of his last date of employment. The narrow question before the board was whether the 66 2/a% factor or the 60% factor applied to Taylor’s claim, and the board answered the question. The relief granted was not “necessary and incidental to the full exercise of the [board’s] powers.” Levangie’s Case, supra. Nor was it “necessary to dispose completely of the claim.” Utica Mutual Ins. Co. v. Liberty Mutual Ins. Co., 19 Mass. App. Ct. 262, 267 (1985). Once the board affirmed the decision of the administrative judge, its authority over the case ended. Compare Hansen’s Case, supra. Additionally, the board’s power to recommit is, under § 11C, limited to the power to “recommit ... for further findings of fact.” There was neither an order nor a need for further findings. The board exceeded its statutory authority when it permitted Taylor to reopen his case after it affirmed the decision of the administrative judge. See G. L. c. 152, § 12(2); G. L. c. 30A, § 14(7)0), (c).

2. General Laws c. 152, § 35B, issues. The board unanimously affirmed the decision of the administrative judge, who determined that § 35B required the application of rates in effect as of December 14, 1993, the date of Taylor’s “subsequent injury.” Those rates were inserted by St. 1991, c. 398, § 59. The board correctly construed the operative effect of § 35B. See Don Francisco’s Case, 14 Mass. App. Ct. 456 (1982); Bernardo’s Case, 24 Mass. App. Ct. 48 (1987).

However, after so holding, a majority of the board decided that whether § 35B would apply should be the option of the employee in circumstances where, as here, the prevailing rates in effect at the time of the “subsequent injury” may be overall less favorable to the employee than those in effect at the time of [499]*499the original injury.4 The board reasoned that § 35B “was intended to address the problem of employees suffering a ‘subsequent injury’ being stuck with a compensation rate which was economically relevant to an often remote date of the original injury. We think that, like Sec. 51 A,5 Sec. 35B must be construed to benefit employees, not to disadvantage them.” It relied upon dictum6 in Madariaga’s Case, 19 Mass. App. Ct. 477 (1985), for the proposition that the Legislature intended § 35B to serve to enhance benefits, and never to reduce benefits, between the time of injury and the time of recurrence.

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Cite This Page — Counsel Stack

Bluebook (online)
691 N.E.2d 997, 44 Mass. App. Ct. 495, 1998 Mass. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylors-case-massappct-1998.