RAYMOND RIVAL'S CASE.

ROSE, J. This case is before us on a report pursuant to G. L. c. 152, Section 11, of the following question of law: May an employee who has incurred an injury specified in G. L. c. 152, Section 36, [Note 1] and who receives unemployment benefits under c. 151A, also receive partial incapacity benefits under G. L. c. 152, Section 35? [Note 2]

The plaintiff lost his right arm in an industrial accident in 1967 and was subsequently employed on a seasonal basis in a job specially created for him. For approximately four months every winter he was laid off from that job due to the seasonal nature of the work and his inability to perform the other work previously assigned to him during the winter months. During those periods of unemployment he received unemployment compensation benefits, which he seeks to supplement with partial incapacity benefits under G. L. c. 152, Section 35, up to the amount of his former weekly wage.

Following a conference pursuant to G. L. c. 152, Section 7, a single member of the Industrial Accident Board in 1975 ordered the insurer to pay partial incapacity benefits for those periods. At the request of the insurer a hearing was held before another single member in 1976, who ordered payment of benefits for a subsequent period when no unemployment benefits were received but denied the claim for partial incapacity benefits for the periods in

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question, on the ground that to allow the claim would be to allow "double benefits," contrary to the intent of G. L. c. 151A, Section 25(d). [Note 3] The reviewing board adopted this single member's decision, with a slight modification not at issue here. The employee appealed, and a Superior Court judge entered judgment affirming the reviewing board's decision and reported the question of law, pursuant to G. L. c. 152, Section 11, to the Supreme Judicial Court, which referred the question to this court.

We answer the question reported to us in the affirmative. We conclude that under the provisions of c. 151A, Section 25(d), because the employee has an injury specified in c. 152, Section 36, he is entitled to receive partial incapacity benefits under c. 152, Section 35, up to the amount of his average weekly wage prior to the injury for the periods in question. This conclusion accords with the construction given to c. 151A, Section 25(d), by the court in Pierce's Case, 325 Mass. 649 , 655-656 (1950).4 In that case an employee suffered a back strain which precluded him from working for a period of time. He filed a claim for workmen's compensation for that period, during which he was receiving unemployment benefits. The court considered the effect

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of c. 151A, Section 25(d), and concluded that since the employee was not suffering from a specific injury included in c. 152, Section 36, he was barred from recovering workmen's compensation for the same period in which he was receiving unemployment benefits. The court reasoned that the Legislature had intended a single exception to be made "in favor of those who sustain partial incapacity from one of the specific injuries mentioned in said Section 36," and stated that payment of unemployment benefits to those "who are receiving compensation by reason of partial incapacity due to an industrial injury is now restricted to those whose partial incapacity has resulted from the loss of an arm or a leg or some one of the other specific injuries enumerated in Section 36 . . . ." Pierce's Case, supra at 655, 656.

The insurer contends that the construction given to c. 151A, Section 25(d), in Pierce's Case was contrary to the intent of the statute, which, the insurer argues, was to permit only payments made under c. 152, Section 36, and not other payments for injuries specified in Section 36, to be received at the same time as unemployment benefits. We note, however, that the Legislature has amended c. 151A, Section 25, numerous times since the opinion in Pierce was issued in 1950, but has left the portion of Section 25(d) construed in Pierce unchanged. It must be presumed, therefore, that the Legislature has adopted the construction of the statute given it in Pierce's Case. Commonwealth v. Hartnett, 3 Gray 450 , 451 (1855). Commonwealth v. Benoit, 346 Mass. 294 , 297 (1963). See also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977), in which the court stated, "[W]e must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." See generally 2A Sands, Sutherland Statutory Construction Section 49.05, at 30 (4th ed. Supp. 1979). The fact that G. L. c. 152, Section 36, has been amended to include many more types of injuries does not render the court's construction in Pierce invalid, since it was c. 151A, Section 25(d), and not c. 152, Section 36, which the court construed in Pierce.

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The allowance of the employee's claim for partial incapacity benefits will not result in the payment of "double benefits." In Pierce's Case supra at 655-656, the court commented that the Legislature apparently intended to create two separate systems through workmen's compensation and unemployment benefits, the first to compensate for loss in earning capacity due to industrial injury and the second for unemployment due to depressed business conditions. The Legislature, however, in c. 151A, Section 25(d), as an exception to the general rule, permitted a person incapacitated by an injury specified in c. 152, Section 36, to receive both partial incapacity benefits and unemployment benefits, apparently because of a recognition that "in such a case it might reasonably be assumed that the workman would not only suffer a diminution of his earning capacity due directly to his injury but would be further handicapped in securing employment during a period of business depression due to his visible maimed or handicapped condition . . . ." Id. at 655. Noting the exception made for employees "suffering from a specific injury included in Section 36," one writer has stated that the exception "does not result in the employee receiving a combined payment in excess of his average weekly wage when gainfully employed, as the board will usually set the employee's earning capacity at an amount equal to or above the unemployment benefit. Then his compensation for partial incapacity is based on the difference between such earning capacity and his former average weekly wage, as provided in [G. L. c. 152,] Section 35." Locke, Workmen's Compensation Section 616, at 731-732 (1968). See generally 2 Larson, Workmen's Compensation Section 57.65 (1976); 4 id. Section 97.20 (1979).

Here the employee worked in a job specially created for him because of his injury, and his unemployment during the winter months was due to the seasonal nature of that job and also to the fact that he was unable, as a result of his handicap, to perform the other types of work that he had previously done during those months. The combination

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of unemployment benefits supplemented by partial incapacity benefits will merely bring his income up to the level of his "average weekly wage before the injury" (G. L. c. 152, Section 35) in compensation of the loss he suffered as a result of that injury, and in no way involves a duplication of any payments to him.

The question is answered in the affirmative, and the judgment is reversed in so far as it affirms the reviewing board's denial of the claim for partial incapacity payments. Judgment is to be entered in accordance with the principles enunciated in this opinion.

So ordered.