Decision  John M. Camara v. DPW Mass Highway Dept.

Date:	12/05/2006
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 075500-87
Location:	Boston
Referenced Sources:	John M. Camara v. DPW Mass. Highway Department John M. Camara v. DPW Mass. Highway Department

• Employee: John M. Camara
• Employer: DPW Mass Highway Dept.
• Self Insurer: Commonwealth of Massachusetts

FABRICANT, J. The self-insurer and employee cross-appeal from a decision in which an administrative judge awarded a § 34B cost-of-living adjustment (COLA)¹  on § 34A permanent and total incapacity benefits being paid for a 1987 work injury. The self-insurer contends that the date the judge used to establish the applicable COLA multiplier, the 1987 date of injury, was erroneous because the employee’s rate of compensation payments were based on a § 35B “subsequent injury”² date in 1994. Based on our decision in Favreau v. Perini/Kiewit/Atkinson, 20 Mass. Workers’ Comp. Rep.___ (July 12, 2006), we affirm the judge’s assignment of the 1987 date of injury for the purpose of calculating the employee’s COLA, notwithstanding the rate-shifting effect of § 35B. The employee challenges the judge’s denial of his claim for a § 8(5) penalty³ based on the self-insurer’s unilateral reduction of COLA being paid on the § 34A benefits. Based on our decision in Montleon v. Massachusetts Dept. of Public Works, 16 Mass. Workers’ Comp. Rep. 354 (2002), we reverse that part of the decision and award the § 8(5) penalty claimed.

 

¹  General Laws c. 152, § 34B provides, in pertinent part:

Any person receiving or entitled to receive benefits under the provisions of section thirty-one or section thirty-four A whose benefits re based on a date of personal injury at least twenty-four months prior to the review date [October first of each year] shall have his weekly benefit adjusted, without application, in accordance with the following provisions:

                                                 . . .

(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.

²  General Laws c. 152, § 35B, provides, in pertinent part:

An employee who has been receiving compensation under this chapter and who has returned to work for a period 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. . . .

³  General Laws c. 152, § 8(5), provides, in pertinent part:

[I]f the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty payment equal to twenty per cent of the additional compensation due on the date of such finding.