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7 Mass. Workers' Comp. Rep. 116

Department of Industrial Accidents
Commonwealth of Massachusetts

EDWARD BELLIS, EMPLOYEE
COUNTY OF MIDDLESEX, EMPLOYER
COUNTY OF MIDDLESEX, INSURER
BOARD NO. 30509-87
Filed: May 25, 1993

J. Channing Migner., Esq. for the employee
Thomas F. Gibson., Esq. for the insurer

REVIEWING BOARD DECISION

FISCHEL, J. The sole issue on appeal to the reviewing board by the employee is the computation of the employee's average weekly wage under G.L. c. 152 § 1(1). The employee, Edward Bellis, a janitor for the County of Middlesex, sustained an injury at work on April 13, 1987 and the self-insurer accepted liability for the payment of workers' compensation. At the time of his injury the employee was working only part-time for the County under special terms so as to preserve his continued entitlement to receive a superannuation pension pursuant to G.L. c. 32 § .91(b) [FN1] subsequent to his retirement on July 2, 1980 after years of service to the Commonwealth as a General Court officer.

The special terms of his appointment as a Middlesex County janitor were that he would work in the new position of janitor as a retired employee for not more than (120 days) or (960) hours in aggregate in any calendar year. The employee was hired by the County on a specific temporary appointment in 1987 such that his annual wage as a County employee in 1987 would not have been in excess of $7220.51. The employee was free to choose whether to work full-time in a concentrated period of weeks or to spread the hours of work out over any 120 day period of the calendar year. The employee opted to distribute the 960 work hours over a period of 29 weeks of employment.

In calculating the weekly workers' compensation payable to the employee as a result of his April 13, 1987 industrial injury, the self-insurer divided the employee's annual salary by the 52 weeks in a year and proceeded to pay weekly workers' compensation on that basis. The employee filed a claim for an adjustment in his average weekly wage contending that his average weekly wage should be determined by dividing his annual salary by the number of weeks he actually worked during the year.

The employee's claim was denied by decision of an administrative judge filed on November 10, 1987, and the employee appealed to the reviewing board which found that the evidence did not contain sufficient facts upon which a finding on average weekly wage could have been made. The reviewing board vacated the decision, directing that the case be assigned for hearing anew. Bellis's Case 2 Mass. Workers' Comp.Rep. 135 (1988). On July 24, 1989 the case commenced before another administrative judge in Boston.

The parties stipulated in that second hearing that the employee's annual wage was $7220.51; that in order to continue to legally collect his pension the employee could not work beyond 960 hours in a calendar year in his position as a janitor for the County of Middlesex; that the employee did in the past and intended to work in the future for the County only until he reached 960 hours in a calendar year; and that the employee was seeking in this workers' compensation claim to be awarded an average weekly wage that would yield a compensation rate which would net the employee in a calendar year more than he could have legally earned as an employee of Middlesex County. The employee contended that his average weekly wage should be $249.98, calculated by dividing his annual salary of $7220.51 by his 29 weeks of actual work, yielding a worker's compensation rate of $165.99 per week.

*2 The administrative judge rejected the employee's contention and found that the self-insurer applied the correct formula in dividing the employee's annual salary by 52. The administrative judge found that it would be manifestly unjust to sustain the employee's contention as to calculation, which would allow the employee to collect more money in workers' compensation on an annual basis than he was entitled to earn while working for the County and collecting his pension. The administrative judge denied the employee's claim for an adjustment in average weekly wage and ordered the self-insurer to pay § 34 benefits at the rate of $92.55 per week based on the prior 52 weeks stipulated earnings of $7220.51.

The employee filed this appeal from the November 17, 1989 decision of the administrative judge, arguing on review that calculation of the average weekly wage under G.L. c. 152 § 1(1) [FN2] should be based only on actual weeks of work and that since he worked only 29 of the 52 weeks in the year the other 23 weeks were "lost" and should be eliminated from the calculation of average weekly wage.

This issue was addressed by the reviewing board in Herbst's Case, 6 Mass. Workers' Comp.Rep. 4 (1992), where a disabled school teacher contended that because his salary as a school teacher was earned during a 39 week school year that the remaining 13 weeks of summer vacation should be considered "time lost". The reviewing board upheld the findings of the administrative judge that the employee's summer vacation was time in which he freely chose not to work and was not "time lost" as defined in G.L. c. 152 § 1(1), since whether or not to work during the school vacation was in the control of the employee.

Here the employee had control of his work earnings since he had the option of working for an employer other than a political subdivision of the Commonwealth or of declining his pension and working full-time for the County. He made the choice to work for the County while collecting that pension and limit his work hours accordingly. The employee is not entitled to use the "time lost" provisions in calculation of his average weekly wage.

In Robichaud's Case, 292 Mass. 382 (1935) the employee worked only alternate weeks and argued that the intervening weeks of non-work should not be included in the divisor in computing his wages. The court rejected the argument of the employee, finding that to sustain his contention would give the employee more money while totally disabled than he could earn while working. Robichaud's Case, at 384. An employee cannot be put in a better position with respect to compensation than he was before the injury. Kaczmarczyk's Case, 328 Mass. 9 (1951).

We reject the employee's contention that he should be awarded an average weekly wage that would yield a compensation rate which would net the employee over the calendar year more than he could have legally earned while he worked for the County and collected his pension. We affirm the decision of the administration judge denying an upward adjustment in the employee's average weekly wage.

*3 Carolynn N. Fischel
Administrative Law Judge

William A. McCarthy
Administrative Law Judge

Sara Holmes Wilson
Administrative Law Judge

FN1 G.L. c. 32 § 91(b) provides in pertinent part that "any person who has been retired and who is receiving a pension ... under the provision of this chapter ... from the commonwealth, county, city, town, district, or authority, ... by reason of having attained an age specified in said general or special law ... may, subject to all laws, rules and regulations, governing the employment of persons in the commonwealth, county, city, town, or district or authority, be employed in the service of the commonwealth, county, city, town, district or authority for not more than one hundred and twenty days, or nine hundred and sixty hours in the aggregate, in any calendar year, provided that the earnings therefrom when added to any pension or retirement allowance he is receiving do not exceed the salary that is being paid for the position from which he was retired or in which his employment was terminated."

FN2 G.L. c. 152 provides, in pertinent part: § 1(1), "Average weekly wages", the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted.

1993 WL 193823 (Mass.Dept.Ind.Acc.), 7 Mass. Workers' Comp. Rep. 116

END OF DOCUMENT


1993 WL 193823

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