Case of Bradley

• Decision Date: 22 April 1999
• Docket Number: No. 98-P-1379,98-P-1379
• Citation: 708 N.E.2d 963,46 Mass.App.Ct. 651
• Parties: Stephen T. BRADLEY'S CASE. Suffolk
• Court: Appeals Court of Massachusetts

Page 963

708 N.E.2d 963

46 Mass.App.Ct. 651

Stephen T. BRADLEY'S CASE.

No. 98-P-1379.

Appeals Court of Massachusetts,

Suffolk.

Argued Sept. 11, 1998.

Decided April 22, 1999.

John K. McGuire, Jr., Worcester, for the employee.

Richard W. Jensen, Stoneham, for the insurer.

Present: WARNER, C.J., PERRETTA, & LENK, JJ.

PERRETTA, J.

On a report by a single justice of this court on the employee's appeal from a decision of the reviewing board of the Department of Industrial Accidents (department) summarily affirming the administrative judge, we are presented with the question whether vacation pay received by an employee who is also receiving partial incapacity compensation benefits pursuant to G.L. c. 152, § 35, is to be treated as earnings or as a fringe benefit. The administrative judge concluded, on undisputed facts, that the employee's vacation pay counts as wages, to be included in the calculation of the amount of his compensation benefits for the weeks in dispute. We affirm.

1. The undisputed facts. About two weeks after he was injured in the summer of 1993, Stephen T. Bradley (employee) returned to work at the Commonwealth Gas Company (employer) in a light duty position. Because his pay in this post-injury position was less than what he previously had earned as a serviceman, he received partial incapacity benefits from the employer's licensed self-insurer, Commonwealth Energy Systems (insurer).

In July, 1994, Bradley took the vacation he was allowed under the terms of the collective bargaining agreement between the employer and its employees. According to those terms, employees are entitled to receive two weeks vacation, with pay, "provided their continuous regular employment preceded January 1st of the current vacation year." Employees with longer continuous service were entitled to longer vacation periods, and, in July, 1994, Bradley, who had worked for the employer for over twenty years, took three weeks of vacation. As provided in the bargaining agreement, a week's vacation pay was to be computed on the basis of the employee's "prior year W-2 earnings divided by the number of pay periods in the year," with certain adjustments for holidays, sick leave, and union activities.

2. The disputed method of computation. Partial incapacity compensation benefits are determined in accordance with the terms of § 35, which, as amended by St.1991, c. 398, § 63, reads as follows:

"While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four. An insurer may reduce the amount paid to an employee under this section to the amount at which the employee's combined weekly earnings and benefits are equal to two times the average weekly wage in the commonwealth at the time of such reduction." (Emphasis added.)

As here relevant, the meaning of "average weekly wage," defined in G.L. c. 152, § 1(1), as amended by St.1991, c. 398, § 13, is:

"[T]he earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two....

"Except as provided by sections twenty-six and twenty-seven of chapter one hundred forty-nine, such fringe benefits as health insurance plans, pensions, day care, or education and training programs provided by employers shall not be included in employee earnings for the purpose of calculating average weekly wages under this section."

The parties have stipulated that, for the three weeks in issue, "two times the average weekly wage in the commonwealth" (§ 35) was $1,131.88, and that Bradley's pre-injury average weekly wage (§ 1 ) was $1,469. In calculating the amount of § 35 benefits due Bradley for each of those weeks, the self-insurer treated his vacation pay as his actual earnings for that week, applied the statutory cap ("two times the average weekly wage in the commonwealth") and reduced the amount of his benefits accordingly. ¹ Bradley protested, claiming that his vacation pay was a fringe benefit of his employment, like health insurance, and should not have been included in the calculation of his § 35 benefits. The administrative judge concluded that, because the "amount of vacation pay received, be it higher or lower than what the employee earns for nearby weeks actually worked, is the employee's wage earned for that week," the self-insurer's computation of benefits due was correct.

3. Discussion. Section 35 benefits are intended to compensate an employee for a loss of earning capacity caused by a work-related injury. See Federico's Case, 283 Mass. 430, 432, 186 N.E. 599 (1933); Murphy v. Commissioner of the Dept. of Industrial Acc., 415 Mass. 218, 222, 612 N.E.2d 1149 (1993). Prior to 1985, the Legislature had not specified the method for computing the average weekly wage an employee was capable of earning after sustaining a work-related injury, and much was left to the department's specialized knowledge and technical competence. See Sjoberg's Case, 394 Mass. 458, 460, 476 N.E.2d 196 (1985), construing § 35, as appearing in St.1973, c. 978, § 6. However, § 35 must now be read with § 35D(1), as added by St.1985, c. 572, § 45, which provides, as here relevant, that the post-injury weekly wage the employee is capable of earning is the "actual earnings of the employee during each week." Put another way, the weekly amount of Bradley's § 35 benefits was determined on the basis of the difference between his weekly post-injury actual earnings and his pre-injury average weekly wage.

Bradley reads the term "earnings" expansively in one instance (§ 1 ) and narrowly in others (§ 35 & § 35D ), in order to increase the amount of the difference between his pre-injury average weekly wage and his actual post-injury weekly earnings. ² See, e.g., Borofsky's Case, 411 Mass. 379, 380, 582 N.E.2d 538 (1991). It is, however, an established rule of statutory interpretation that "the same words in different parts of a statute enacted at the same time, barring some contrary indication in the statute, should receive the same meaning." Green v. Board of Appeals of Provincetown, 404 Mass. 571, 573, 536 N.E.2d 584 (1989), and cases cited therein.

In Borofsky's Case, supra at 380, 582 N.E.2d 538, the employee argued that, for purposes of determining his average weekly wage, the value of his employer-paid health insurance benefits constituted earnings. Citing Powers's Case, 275 Mass. 515, 518-520, 176 N.E. 621 (1931), the court concluded that because the value of health insurance benefits did not "bear a close analogy to wages" it was not to be considered in determining the average weekly wage and left the matter to the Legislature to address the issue. The Legislature responded with St.1991, c. 398, § 13, which expressly excludes the value of health insurance benefits from the calculation of an employee's average weekly wage.

No mention of vacation pay is made in St.1991, c. 398, § 13. However, and as earlier noted, Borofsky's Case, supra, makes clear that the crucial test for determining whether vacation pay falls within the meaning of "earnings" is whether the pay received by Bradley from his employer while on vacation "bear[s] a close analogy to wages." See Gunderson's Case, 423 Mass. 642, 644, 670 N.E.2d 386 (1996); Louis's Case, 424 Mass 136, 140, 676 N.E.2d 791 (1997). Based upon that analysis, tips, commissions, room and board, and partial disability payments have...