No. 02681993 (1999). EMPLOYEE: Stephen T. Bradley.

• Case Date: May 11, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 02681993 (1999). EMPLOYEE: Stephen T. Bradley COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Stephen T. Bradley EMPLOYER: Commonwealth Gas Company INSURER: Commonwealth Energy SystemsBOARD NO. 02681993REVIEWING BOARD DECISION (Judges Wilson, Smith and McCarthy)APPEARANCES John K. McGuire, Jr., Esq., for the employee Michael A. Fager, Esq., for the self-insurer WILSON, J. The self-insurer appeals from a decision in which an administrative judge awarded the employee partial incapacity benefits based on the stipulated average weekly wage of $1,469.00, and an earning capacity of $240.00 per week. (Dec. 16.) The employee had returned to light duty work for the employer after his accepted industrial accidents of June 22, 1993 and August 25, 1993. (Dec. 2.) The employee's claim was for a closed period from March through September 1996, when the employer locked out all members of the union in a labor dispute. 1 (Dec. 2-4.) For the reasons that follow we affirm the decision. The parties agreed to the following statement of the issues in controversy at the hearing, which the judge included in his decision: In light of G.L. c. 152, § 35D(3), § 35D(4) and § 35D(5), is the Employee entitled to any weekly benefits pursuant to G.L. c. 152, § 35 and § 36B(2) for the period March 31, 1996 to September 23, 1996, when: a. he had been working at a particular suitable job, see G.L. c. 152, § 35D(3), at Commonwealth Gas Company since approximately May 1, 1995; b. he was working at this particular suitable job, see G.L. c. 152, § 35D(3), at Commonwealth Gas Company immediately prior to March 31, 1996; c. he could not continue doing this job after March 31, 1996 and continuing to September 23, 1996 only because of a lockout from March 31, 1996 to September 23 , 1996 in connection with a labor dispute; d. he had, prior to March 31, 1996, been receiving weekly benefits pursuant to G.L. c. 152, § 35 and § 35D(1) based on an average weekly wage of $1,469.00 per week and paid wages ranging from $930 to $1100 per week since approximately May 1, 1995 up to March 30, 1996; and e. he received $347.00 per week in unemployment compensation benefits for the period March 31, 1996 to September 23, 1996, so that application of the dollar-for[-]dollar offset of G.L. c. 152, § 36B(2) would mean, based on mathematical computation, that he would be entitled to no weekly benefits for the period March 31, 1996 to September 23, 1996, if the wages he had previously received, of $930 to $1100 per week, represented his appropriate earning capacity pursuant to either G.L. c. 152, § 35D(3), § 35D(4) or § 35D(5), for the period March 31, 1996 to September 23, 1996? 2. If so, to what weekly benefits is he entitled? 3. By bringing this Claim has the Employee violated G.L. c. 152, § 14(1)? (Dec. 4-5.) The employee was injured while performing his duties as a serviceman, which required daily lifting of up to 100 pounds, with the average being eight to twenty pounds, as well as force-intensive work with wrenches and hammers with frequent bending. (Dec. 6-7.) In November 1995, the employee was "medically retrogressed" in accordance with his union contract to a job as customer service clerk-special, in which he made telephone calls to set up appointments and did filing. (Dec. 6.) It was this job that the employee was performing when the employer locked out its employees on March 31, 1996, because the labor contract had expired and no agreement on a new contract had been reached. (Dec. 6.) According to the employee's treating physician, whose opinion the judge adopted, a clerical job was within the medical restrictions imposed on the employee for his diagnosed condition of a chronic thoracic strain. (Dec. 8.) The employee was paid more than $23.00 per hour for doing the light duty clerical and filing work, due to his union contract provision that he would continue to receive the wages paid for his skilled serviceman work, even while doing work that did not merit such high wages. 2 (Dec. 11-12.) The judge determined that the wages that the employee received for the light duty clerical job were an anomaly, in the nature of a gratuity, based on contractual provisions of "medical retrogression." Thus, such wages were "artificially inflated" and did not reflect the market value of the work the employee was performing. (Dec. 11-12.) Accordingly, the judge found that the wages the employee had been earning at that stipulated "particular suitable job" under § 35D(3), made available to him by the employer prior to the lockout, was not a proper measure of his earning capacity during the lockout, the period in dispute. (Dec. 11.) As a result, the judge assessed the employee's earning capacity in accordance with § 35D(4), using his own knowledge and judgment to compute a dollar amount that the employee was "capable of earning," where no direct evidence was presented on the issue. (Dec. 11.) Following the analysis set out in Scheffler's Case, 419 Mass. 251, 260-261 (1994), the judge concluded that the employee was capable of earning $240.00 per week from March 31, 1996 to September 23, 1996, given his physical limitations causally related to his industrial injury and his vocational profile. (Dec. 13.) The judge allowed the self-insurer to take a § 36B(2) credit against the § 35 benefits awarded, $407.48 per week, based on the employee's receipt of weekly unemployment compensation benefits of $347.00 per week during the disputed period, which order is not challenged by the self-insurer on appeal. (Dec. 16.) The judge also denied the self-insurer's claim for § 14 penalties against the employee for bringing a frivolous claim. (Dec. 14-15.) The self-insurer contends in its appeal that the employee did not suffer a loss of earnings attributable to his industrial injury during the lockout. Rather, the self-insurer argues, the employee's loss of earnings was caused by economic factors brought about by the labor dispute between the employee's union and the employer. See Driscoll's Case, 243 Mass. 236, 239 (1922)(inability to work resulting from depressed condition of industry in which employee is engaged not compensable under the Act); Pierce's Case, 325 Mass. 649, 656 (1950). We do not agree. It is well-settled that the reviewing board will not reexamine the factual determinations of the administrative judge, if there is evidence to support the findings, unless different findings are required as a matter of law. Bajdek's Case, 321 Mass. 325, 326 (1947). The general findings of the judge will be sustained where possible. Zucchi's Case, 310 Mass. 130, 133 (1941). We think that the judge's reasoning and analysis in this case fits soundly within the scope of his authority under the provisions of the Act. See Scheffler's Case, 419 Mass. 251, 256 (1994), and case law set out infra that presents facts analogous to the lockout context of this case. The self-insurer's argument is premised on the following hypothesis. The self-insurer maintains that the employee's hourly wage of $24.01 for light duty work after his injury, guaranteed to employees with at least ten years service under the union contract, must be considered "in the context of the labor market in which ComGas and the union exist[.]" "If a particular labor market supports such an employer as ComGas, with the high wages it pays its employees, that does not constitute an artificially high wage scale[ ]" for determining earning capacity for performing light duty. (Self-insurer brief 10-11.) The self-insurer thus attacks, as contrary to law, the judge's finding that the employee's post-injury hourly wage for his light duty filing job was artificially inflated, and therefore not an appropriate figure for the determination of the employee's capacity to earn while performing such work in the general labor market. (Dec. 12-13.) We cannot see the logic in the proposition espoused. There is nothing in the record evidence that would compel the judge to find that a similar position with the same union at another employer was available to the employee, such that this "union labor market" concept might actually have some credence. Certainly ComGas was not a part of the labor market for union members, such as the employee, whom it had locked out. As is his prerogative, the administrative judge aptly and explicitly exercised his knowledge and judgment in determining the employee's earning capacity in a case where there was no direct evidence on the issue. (Dec. 11.) See Mulcahey's Case, 26 Mass. App. Ct. 1 (1988); Nicholson v. Consolidated Freightways, 11 Mass. Workers' Comp. Rep. 119 (1997)...