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In re Salter's Case6/24/2002
e must add the word 'maximum' to the Legislature's 1991 amendment . . . ."
In its present form, without the word "maximum," the provision has a sensible meaning. Until a seriously injured employee's condition has stabilized and it is known whether the employee's condition will improve, he or she will in the usual course first receive payments under § 34. Thereafter, sometimes the employee's condition will improve, and he or she will receive partial payments under § 35. There are also occasions when the condition of an employee receiving § 35 payments will worsen, and, therefore, he or she may be entitled to total incapacity benefits after receiving partial incapacity benefits. Where, as here, the statute read literally makes sense and where the Legislature had the clear model of the pre-1985 provision, we see no reason to add words to § 34A.
Moreover, not requiring exhaustion seems more consistent with the provisions of §§ 35 and 34B. Section 35 provides that, in the absence of an agreement by the insurer or a finding by an administrative judge, the number of weeks an employee may receive benefits under § 34 and § 35 shall not exceed 364. The board's interpretation would require a permanently totally incapacitated employee who had previously received partial benefits to exhaust both the § 34 and § 35 payments and, therefore, to wait at least seven years before receiving payments under § 34A or a cost of living adjustment under § 34B. Nothing suggests that the Legislature had such a harsh intent.
The provisions of § 34B that provide for a cost of living adjustment also seem incongruous with the three-year exhaustion requirement determined by the board. That provision which, in relevant part, is set forth in the margin, was also revised in 1991, and, specifically referring to § 34A, envisions the possibility of a cost of living increase for an employee receiving benefits under § 34A prior to the expiration of the three-year period during which payments may be made under § 34.
The majority of the board considered the language of § 34A to be unclear and relied on the Legislature's main objective of saving costs in reaching its decision. Reliance on cost savings to interpret each provision of the act would in one fell swoop nullify the traditional statutory construction of c. 152. As recently as in CNA Ins. Cos. v. Sliski, 433 Mass. 491, 493 (2001), the Supreme Judicial Court explained the purpose of the chapter and how it should be interpreted:
"We have long recognized that the workers' compensation statute was enacted as a 'humanitarian measure' in response to strong public sentiment that the remedies afforded by actions of tort at common law did not provide adequate protection to workers who were the victims of industrial accidents. Young v. Duncan, 218 Mass. 346, 349 (1914). LaClair v. Silberline Mfg. Co., 379 Mass. 21, 27 (1979). We have stressed that the statute should be given a broad interpretation, viewed in light of that purpose. Roberge's Case, 330 Mass. 506, 509 (1953)."
While " reviewing court accords due weight and deference to an agency's reasonable interpretation of a statute within its charge, Massachusetts Med. Soc'y v. Commissioner of Ins., 402 Mass. 44, 62 (1988), . . . ' he duty of statutory interpretation is for the courts.' Cleary v. Cardullo's, Inc., 347 Mass. 337, 344 (1964)." Police Commr. of Boston v. Cecil, 431 Mass. 410, 413 (2000). In view of the long-standing tradition of construing c. 152 in light of its beneficial purpose, we decline to add the word "maximum" to language contained in § 34A based on a general legislative intent to save costs or reduce a backlog. For us to insert such additional language requires a
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