In re McCarty's Case11/23/2005
Suffolk.
September 8, 2005
Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.
Workers' Compensation Act, Average weekly wages. Statute, Construction.
This case concerns the proper calculation of "average weekly wages," under G. L. c. 152, § 1 (1), where a union worker is injured on an entirely union public works project and entitled to workers' compensation benefits. The reviewing board of the Department of Industrial Accidents (reviewing board) determined that employer payments into health and welfare plans, pension plans, and supplemental unemployment benefits (fringe benefits) must be included in determining the employee's average weekly wages. Because we conclude that the plain language of the applicable statutes, G. L. c. 152, § 1 (1), as amended through St. 1991, c. 398, § 13, and G. L. c. 149, §§ 26 and 27, makes the inclusion of such employer payments mandatory, we affirm the reviewing board's decision.
Facts and Procedural History
This case has a long, complex procedural history which we need not belabor. Suffice it to say, William McCarty (employee), a member of Local 3 of the Bricklayer's and Allied Craftsmen Union, worked for defendant Wilkinson & Company (employer) as a tile setter and grouter on Boston's third harbor tunnel project (project). He was injured in 1994 and received workers' compensation benefits from National Union Fire Insurance Company of Pittsburgh, Pennsylvania (insurer) until 2000. In March, 1996, an administrative judge concluded that, because all the project's employees were unionized, the computation of the employee's average weekly wage should not include fringe benefits. On May 21, 1997, the reviewing board reversed the decision of the administrative judge, holding that the statutory scheme required the inclusion of fringe benefits. The case was remanded and the administrative judge amended his decision. Ultimately, the reviewing board affirmed his decision. The insurer and the employer appealed. We transferred their appeal from the Appeals Court pursuant to G. L. c. 211, § 4A.
Discussion
We begin by setting forth the relevant portions of the applicable statutes.
A permanently or partially incapacitated employee is entitled to receive compensation under the workers' compensation statute. G. L. c. 152, §§ 34, 35. The amount is based on certain formulas in the statute. Id. Those formulas include a calculation of the employee's average weekly wages. General Laws c. 152, § 1 (1), defines "average weekly wages," for injured employees. The second paragraph of that definition, inserted by St. 1991, c. 398, § 13, states, in pertinent part:
"Except as provided by sections twenty-six and twenty-seven of chapter one hundred forty-nine, such fringe benefits as health insurance plans, pensions, day care, or education and training programs provided by employer shall not be included in employee earnings for purposes of calculating the average weekly wages . . ." (emphasis added).
General Laws c. 149, §§ 26 and 27, as amended through St. 1991, c. 552, § 94, and St. 1993, c. 110, § 173, respectively, referred to in the second paragraph of G. L. c. 152, § 1 (1), are part of the prevailing wage law, and allow the Commissioner of Labor and Industries to set wage rates on public works projects. Felix A. Marino Co. v. Commissioner of Labor & Indus., 426 Mass. 458, 459 (1998). Section 26 states, in relevant part:
"Payments by employers to health and welfare plans, pension plans and supplementary unemployment benefit plans under collective bargaining agreements or understandings between organized la
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