No. 01406900 (2003). EMPLOYEE: Pasquale Pezzulo.

• Case Date: December 30, 2003
• Court: Massachusetts

Massachusetts Workers Compensation 2003. No. 01406900 (2003). EMPLOYEE: Pasquale Pezzulo COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Pasquale Pezzulo EMPLOYER: City of Salem Self-insurer: City of Salem BOARD NO. 01406900REVIEWING BOARD DECISION (Judges Costigan, Maze-Rothstein and Carroll)APPEARANCES Donald E. Wallace, Esq., for the employee Kevin T. Daly, Esq., for the self-insurer COSTIGAN, J. The self-insurer accepted liability for the employee's 1986 industrial injury [1] and paid him weekly incapacity benefits, without interruption, for almost fourteen years, always at the rate to which he was entitled for temporary total incapacity under G. L. c. 152, § 34. [2] On April 28, 2000, the self-insurer unilaterally terminated those payments, citing, on the incorrect departmental form, [3] the sole reason that the employee had exhausted the statutory maximum payable for temporary total incapacity, [4] which indeed he had. That event, however, had occurred on June 4, 1991, when Mr. Pezzulo reached the 260-week limit for § 34 benefits applicable to his date of injury. (Dec. 2, 4.) It is not disputed that the City continued to pay the employee weekly incapacity benefits at the same rate for another eight years and eleven months, during which time, [h]e picked up his checks every week at the personnel office at Salem City Hall. No one ever questioned his entitlement to these checks. No one suggested that the employee should return to work. No light duty jobs were offered. (Dec. 4.) After his benefits were terminated, the employee filed a claim for permanent and total incapacity benefits under § 34A, and applicable cost-of-living adjustments under § 34B, from and after June 5, 1991. In the alternative, he claimed temporary partial incapacity benefits under § 35, and applicable COLA benefits under § 35F, from and after April 29, 2000. He also claimed medical benefits under §§ 13 and 30, a penalty under § 8(5) [5] for the self-insurer's alleged illegal discontinuance of compensation, § 14 penalties for the self-insurer's alleged unreasonable defense of his claim, [6] and interest under § 50. (Dec. 1-2.) In the hearing decision which the employee's appeal brings to our review, the administrative judge denied the employee's § 8(5) penalty claim, finding that "[p]ursuant to Section 8(2)(g), the City was permitted to terminate the weekly payments because the employee's entitlement to benefits under Section 34 had been exhausted." (Dec. 11.) The judge adopted the opinions of the § 11A impartial medical examiner and the self-insurer's medical expert, [7] and found that the employee has fallen far short of establishing that he is permanently and totally incapacitated from substantial gainful employment as a result of his June 1986 work injury . . . [W]ere it not for his vision problems and the residual difficulties relating to his heart condition, the employee would have been capable of working at any number of occupations. At a minimum, he has been able to earn the minimum wage, which presently translates to about $250.00 per week. At the time his Section 34 benefits exhausted, the minimum wage was roughly $170.00 per week. As of June 5, 1991, he would have been entitled to Section 35 benefits at the rate of $130.52 per week. (Dec. 10-11.) The judge, however, did not award the employee § 35 partial incapacity benefits. He found that § 35E, [8] affirmatively raised by the self-insurer in defense of the employee's claim, barred payment of temporary partial incapacity benefits to the employee. The judge was not persuaded that the employee, whose pension rights would have vested in 1990 at the latest but perhaps earlier, (Dec. 12-13), "would have remained active in the labor market at any time after his entitlement to Section 34 benefits expired, on June 5 [sic], 1991." (Dec. 12.) The judge denied and dismissed all of the employee's claims. [9] Because we agree with the employee that the administrative judge erred in finding no illegal discontinuance of benefits, we reverse the decision in that regard. We first take issue with the judge's finding that "[t]he City paid the employee Section 34 benefits at the rate of $243.85 until April 28, 2000, nearly nine years after his statutory right to those benefits expired." (Dec. 11.) By operation of statute, the employee could not receive more than 260 weeks of § 34 benefits. "The total number of weeks of compensation due the employee under this section shall not exceed two hundred and sixty." G. L. c. 152, § 34, as appearing in St. 1985, c. 572, § 42. (Emphasis added.) The word "shall" is plain and unambiguous; it is mandatory, not precatory. See Taylor's Case, 44 Mass. App. Ct. 495, 499 (1998); Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983). There is no statutory provision which authorizes either party, or both, or an administrative judge, to extend the 260-week limit on payment of § 34 benefits. The parties stipulated that the 260-week period ended on June 4, 1991. (Dec. 2.) Therefore, the weekly incapacity benefits, which the self-insurer continued to pay after that date, could not have been...