No. 03358393 (2000). EMPLOYEE: Eric Etienne.
Case Date | February 29, 2000 |
Court | Massachusetts |
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...
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