Decision  Arthur W. Favreau v. Perini/Kiewit/Atkinson

Date:	07/12/2006
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 009820-02
Location:	Boston

• Claimant: Deborah Favreau
• Employer: Perini/Kiewit/Atkinson
• Insurer: National Union Fire Insurance Co.

McCARTHY, J. This appeal presents the question of how to coordinate the compensation rate adjustment of § 51A¹ and cost-of-living increases under § 34B. ² In an earlier decision, an administrative judge applied § 51A and ordered that the claimant's § 31 benefits be paid at the rate in effect on the date of that decision, October 9, 2003. ³ As a result the claimant was paid a weekly § 31 benefit of $753.47, representing 66 2/3% of the employee's $1,130.02 average weekly wage. The date of injury/death was April 15, 1998, at which time § 31 benefits were capped at the state average weekly wage of $665.55. The reviewing board summarily affirmed the administrative judge's decision, 18 Mass. Workers' Comp. Rep. 328 (2004), and the insurer then appealed to the Massachusetts Appeals Court. A single justice of that court upheld the determination of the reviewing board.

¹  General Laws c. 152, § 51A, provides:

In any claim in which no compensation has been paid prior to the final decision on such claim, said final decision shall take into consideration the compensation provided by statute on the date of the decision, rather than the date of the injury.

² General Laws c. 152, § 34B, provides, in pertinent part:

October first of each year shall be the review date for the purposes of this section.

Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits are based on a date of personal injury at least twenty-four months prior to the review date shall have his weekly benefit adjusted, without application, in accordance with the following provisions; provided, however, that no increase in benefits shall be payable which would reduce any benefits the recipient is receiving pursuant to federal social security law.

(a) The director of administration shall determine the percentage change between the average weekly wage in the commonwealth on the date of the injury and the average weekly wage in the commonwealth on the review date. . . .

(b) The death benefit under section thirty-one or the permanent and total disability benefit under section thirty-four A that was being paid prior to any adjustments under this section shall be the base benefit. The base benefit shall be changed on each review date by the percentage change as calculated in paragraph (a); the resulting amount shall be termed the adjusted benefit and is the amount of benefit to be paid on and after the review date.

³ Denial orders had issued following a § 10A conference on July 23, 2002, so no compensation claimed had been paid prior to the hearing decision.