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In re Salter's Case6/24/2002
Suffolk.
February 14, 2002
Statute, Construction. Insurance, Workers' compensation insurance. Workers' Compensation Act, Appeal, Compensation, Total incapacity, Exhaustion of benefits.
Under the workers' compensation act (act) there are three types of weekly compensation benefits an injured employee may receive: temporary total disability benefits (G. L. c. 152, § 34), partial disability benefits (§ 35), and permanent and total disability benefits (§ 34A). The question raised by the employee's appeal is whether he was required, once he was found to be permanently and totally disabled, to exhaust his temporary benefits under § 34 before collecting the higher benefits of § 34A, as well as the cost of living benefits of § 34B. The reviewing board of the Department of Industrial Accidents (board), with one member dissenting, concluded that he was required to exhaust his § 34 temporary benefits before being entitled to permanent benefits. We reverse.
There is no dispute about the facts as set forth by the administrative judge and the board. The employee sustained a traumatic brain injury on October 22, 1996, while working for his employer, when the hook at the end of a crane "smashed into head." Although the employee did not testify at the hearing before the administrative judge, he did appear with his attorney, and the administrative judge found that he was "clearly severely incapacitated in his functioning." Based on the medical evidence before him, the administrative judge also found that the employee was "permanently totally disabled as of November 24, 1997." The parties stipulated to the industrial injury, to the employee's base average weekly wage, and to his total incapacity.
We turn to the two provisions providing benefits for total incapacity. In 1991 there was a substantial revision of the act. Sections 34 and 34A, as amended by St. 1991, c. 398, §§ 59 and 60, provide as follows:
Section 34 (temporary total incapacity):
"While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate . . . .
"The total number of weeks of compensation due the employee under this section shall not exceed one hundred fifty-six."
Section 34A (permanent total incapacity):
"While the incapacity for work resulting from the injury is both permanent and total, the insurer shall pay to the injured employee, following payment of compensation provided in sections thirty-four and thirty-five, a weekly compensation equal to two-thirds of his average weekly wage before the injury, but not more than the maximum weekly compensation rate nor less than the minimum weekly compensation rate." (Emphasis supplied).
The board interprets the italicized words as a 1991 reinstatement of the exhaustion requirement that was in effect prior to 1985. In the board's view, the employee must receive lower benefits for three years (156 weeks) under § 34 before receiving § 34A benefits.
The pre-1985 version of § 34A, however, unlike the 1991 revision of 34A, specifically provided for an exhaustion requirement, stating that § 34A payments would begin "following payment of the maximum amount of compensation provided in sections thirty-four and thirty-five, or either of them . . . ." As the dissenting member of the board noted, "To read the disputed statutory phrase ('following payment of the maximum amount of compensation provided in' §§ 34 and 35) as an exhaustion requirement, on
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