No. 03358393 (2000). EMPLOYEE: Eric Etienne.

Case DateFebruary 29, 2000
CourtMassachusetts
Massachusetts Workers Compensation 2000. No. 03358393 (2000). EMPLOYEE: Eric Etienne COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Eric Etienne EMPLOYER: G.M.C. Masonry Co., Inc. INSURER: Liberty Mutual Insurance Co.BOARD NO.: 03358393REVIEWING BOARD DECISION (Judges Wilson, McCarthy and Smith)APPEARANCES Leonard Y. Nason, Esq., for the employee Ralph J. Cafarelli, Esq., for the insurer WILSON, J. The insurer appeals from a decision in which the administrative judge awarded § 34A benefits at rates reflecting the expectation of wage increases in accordance with the provisions of § 51. 1 The insurer contends that the judge's application of § 51 was contrary to law. We agree. We reverse the adjustments to the employee's average weekly wage, and award benefits based on the employee's average weekly wage under § 1(1). We recount only the facts that are relevant to the § 51 issue. The employee was forty-four years old at the time of the § 34A hearing. The insurer had accepted the September 16, 1993 industrial injury to the employee's back, and had paid § 34 benefits to exhaustion based on a stipulated $706.00 average weekly wage. (Dec. 3.) The employee had become a union construction worker in 1983, in which capacity he worked variously as a laborer, carpenter, mason, bricklayer and concrete worker. From August 1993, the employee worked as a mason tender for the employer. (Dec. 3.) At the time of the hearing, the employee continued to be a member of the Laborer's International Union of North America, AFL-CIO, Local #22. Under the Building and Site Construction Agreement that went into effect on June 1, 1997 through May 31, 2000, (Employee's Ex. 3), the employee would have been entitled to biannual increases in his hourly rate: $19.80 on June 1, 1997; $19.90 on September 1, 1997; $20.25 on December 1, 1997; $20.60 on June 1, 1998; $20.85 on December 1, 1998; $21.35 on June 1, 1999; and $22.10 on December 1, 1999. (Dec. 4.) The employee claimed that his average weekly wage should be increased, pursuant to § 51, to reflect these periodic increases provided by the union contract. (Dec. 7.) The judge agreed with the employee and concluded: In this case it can be said that it is certain that the employee's wages would have increased by a definite amount. These circumstances cry out for application...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT