No. 05718690 (1999). EMPLOYEE: Leon Grant.

• Case Date: July 22, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 05718690 (1999). EMPLOYEE: Leon Grant COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Leon Grant EMPLOYER: APA Transmission INSURER: Liberty Mutual Insurance CompanyBOARD NO. 05718690REVIEWING BOARD DECISION (Judges McCarthy, Wilson and Smith)APPEARANCES Robert F. Gabriele, Esq., for the employee Jean M. Shea, Esq., for the insurer MCCARTHY, J. The insurer appeals a decision of an administrative judge finding that principles of res judicata and collateral estoppel bar reconsideration of the issue of average weekly wage after the parties stipulated to average weekly wage in a prior unappealed hearing decision. We agree that principles of res judicata, though not collateral estoppel, prevent reopening the issue of average weekly wage under these circumstances. We also conclude that prior agreements entered into by the parties were binding as to average weekly wage in proceedings before the Board, and that, as with other issues settled by agreement, any remedy for reformation of the agreement lies in Superior Court. Leon Grant injured his lower back at work on October 6, 1990. (Dec. II, 3.) 1 By agreement to pay compensation dated November 28, 1990, the insurer paid a closed period of benefits based on an average weekly wage of $785.31. 2 (Dec. II, 4.) Grant filed a claim for further compensation, for which a § 10A conference was held on November 4, 1991. At the conference, the insurer raised average weekly wage as an issue. (Dec. II, 4-5.) The claim was initially denied, but on April 24, 1992, an administrative judge filed a corrected order of payment awarding closed periods of temporary total and temporary partial weekly incapacity benefits pursuant to §§ 34 and 35, respectively, based on an average weekly wage of $785.31. (Dec. II, 4.) Both parties appealed to a hearing de novo. (Dec. I, 3.) At the hearing, which was held on January 12, 1993, the parties stipulated to an average weekly wage of $785.31. (Dec. II, 4; Dec. I, 1.) In her hearing decision, the judge ordered a closed period of § 34 benefits and ongoing § 35 benefits based on the stipulated average weekly wage. (Dec. I, 17-18.) Neither party appealed. (Dec. II, 4.) The insurer then entered into an agreement to pay § 34 benefits for a closed period from May 4, 1994 to April 11, 1995, based on an average weekly wage of $785.31. (Dec. II, 5; Attachment A, Joint Ex. 21.) On April 12, 1995, the employee filed another claim for § 34 benefits. The claim was heard at conference on September 27, 1995, after which the insurer was ordered to pay § 34 benefits from April 12, 1995 to date and continuing based on the $785.31 average weekly wage. (Dec. II, 6; Attachment A, Joint Ex. 23.) The insurer appealed to a hearing de novo but later withdrew its appeal. (Dec. II, 6.) Shortly thereafter, the insurer filed a complaint for modification or discontinuance of benefits. The complaint also alleged that the employee's weekly benefit payments for the six prior years had been based on an incorrect average weekly wage. Following the § 10A conference on September 26, 1996, the administrative judge refused to modify benefits. The insurer appealed to a hearing de novo on the issue of average weekly wage only. At the time of the hearing, Mr. Grant filed a motion to have the insurer's complaint dismissed. The judge agreed to rule on the motion in the course of her hearing decision. The hearing on the issue of average weekly wage and the overpayment to the employee was held on September 26 and 29, 1997. (Dec. II, 2.) Also at issue was whether the insurer was precluded from raising the average weekly wage at this stage in the claim. (Dec. II, 3.) At the hearing, Peter Baras, the owner of APA Transmission, testified that he had paid the employee only $320.00 per week. (Dec. II, 3-4.) Baras claimed that some time between 1991 and 1993, he forwarded the insurer a wage computation statement supporting this figure. (Dec. II, 4.) Mr. Baras produced none of the supporting wage records at hearing because, he said, they were destroyed during a storm. Id. The insurer's case manager for this claim testified that in April or May of 1996, he discovered in his file a wage computation schedule indicating that the employee's average weekly wage was $320.00. (Dec. II, 5.) This discovery apparently precipitated the insurer's complaint for discontinuance or modification. The judge refused to allow into evidence the wage computation schedule. (Dec. II, 1.) The insurer maintained that it had overpaid the employee a total of $101,442.17 in weekly benefits. The only witness for the employee was a friend who testified that she had helped with his finances, and each week he gave her what she believed to be his wages for the week, amounting to either $490 or $530. (Dec. II, 5.) The employee did not testify. (9/29/97 Tr. 3-4.) In her hearing decision of October 29, 1997, the judge found, inter alia, that principles of both collateral estoppel and res judicata applied to bar relitigation of the issue of average weekly wage. (Dec. II, 7-9, 10.) Relying on Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 101, 103 (1994), the judge found that the prior stipulation at hearing necessarily operated to bar reconsideration of average weekly wage. (Dec. II, 9-10.) Despite her finding that she was precluded from reconsidering average weekly wage, the judge did make some credibility determinations. She found the testimony of the employee's witness " . . . persuasive enough to suggest that the Employee earned more than $320.00 per week." (Dec. II, 10.) She also found Mr. Baras' testimony unpersuasive that neither he nor his accountant could provide crucial documentation regarding the employee's average weekly wage. (Dec. II, 10.) Based on the testimony of the witnesses as well as on her findings regarding res judicata and collateral estoppel, the judge denied and dismissed the insurer's complaint. (Dec. II, 11.) ...