Anthony M. Catalano Employee
Massachusetts Bay Transportation Authy. (M.B.T.A.) Employer
M.B.T.A. Self-Insurer
No. 015020-14
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
July 31, 2019
The
case was heard by Administrative Judge Bean.
Patrick F. Keady, Esq., for the employee
Paul
A. Brien, Esq., for the self-insurer
Koziol, Fabricant and Calliotte, Judges.
REVIEWING BOARD DECISION
KOZIOL, J.
The
employee appeals from a hearing decision ordering the
self-insurer to pay him § 35 benefits from February 1,
2018, and continuing, at a rate of $885.96 per week, based on
a minimum wage earning capacity of $440.00 per week and an
average weekly wage of $1,181.28, along with payment of
§§ 13 and 30 medical benefits for treatment
stemming from his June 20, 2014, industrial injury.
(Corrected Order, Dec. 511.) [1] We agree with the employee that
the judge erred as a matter of law in applying the §
1(7A) “a major cause” standard of causation to
his analysis of the employee’s low back injury,
requiring us to vacate the decision and recommit the case for
further findings of fact.
The
employee was sixty-seven years old at the time of the hearing
in April of 2018. He is a high school graduate who worked as
a union iron worker for twenty-eight years. While working as
an iron worker, he also started and ran his own business
building homes. In that business, he performed the framing
and finishing work and subcontracted out the plumbing and
electric work, while his wife kept the books for the
business. (Dec. 508.) In 1990, he left union iron work to
take a job at the MBTA as a bridge man. He continued
operating his home building business through 2004 or 2005,
when he stopped because of an increase in overtime work for
the MBTA. (Dec. 508.)
The
judge found the employee “suffered a back injury”
that caused him to miss a year of work; however, the employee
could not recall when this occurred, “guessing it was
1996 or 2006.” (Dec. 508.) The judge made no finding as
to whether this injury was work-related or not. In 2013, the
employee was installing a chain link fence on top of a wall
for the MBTA, which required him to pull 50-pound rolls of
fencing off of a truck, carry them to the wall without help,
and then lift them onto the wall, with help. After performing
this task several times, he began to experience back and
shoulder pain; he reported the incident but continued to
work. (Dec. 508.) The judge found the MBTA denied this claim.
Id.
On June
20, 2014, the employee was working a night-time overtime
shift for the MBTA, moving 50-pound sand bags from a truck to
a fence where the sandbags were being used to strengthen
fence posts. He felt low back pain and pain in his dominant
right shoulder while doing this job, and he reported the...
