Deburgo, 112718 MAWC, 017870-04

Docket Nº:017870-04
Case Date:November 27, 2018
Joseph Deburgo, Employee
Walker Electric Inc. Employer
Travelers Indemnity Company, Insurer
No. 017870-04
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
November 27, 2018
         The case was heard by Administrative Judge Vieira.           Charles E. Berg, Esq., for the employee at hearing and on appeal           David G. Braithwaite, Esq., for the insurer at hearing Paul R. Ingraham, Esq., for the insurer at hearing and on appeal           Fabricant, Harpin and Koziol, Judges           REVIEWING BOARD DECISION           FABRICANT, J.          The insurer appeals from a decision awarding the employee permanent and total incapacity benefits pursuant to § 34A, from November 5, 2012, to date and continuing. We vacate the decision and recommit for the judge to make findings whether the employee’s condition has worsened, either medically or vocationally, sufficiently to support a § 34A award.          The employee fell at work on June 16, 2004, and sustained the following injuries: degenerative disc disease of the cervical spine with superimposed strain, degenerative disc disease of the lumbar spine with superimposed strain, A/C arthritis of the right shoulder, right shoulder impingement syndrome, right distal radius fracture with residual symptoms, and left wrist sprain with residual symptoms. (Statutory Ex. B.) Presently, the employee claims injury to his left shoulder, for which the insurer is currently disputing liability. (Dec. 6.)          The initial claims in this matter were previously tried at hearing on two occasions. A hearing decision was filed on June 29, 2007, before a different administrative judge, wherein a closed period of §34 temporary total benefits was ordered. A second hearing decision was filed on February 27, 2009, before the same judge, wherein the employee was awarded §35 temporary partial incapacity benefits in the amount of $279.12, based on an earning capacity of $320.00 and an average weekly wage of $785.21, from February 17, 2007 and continuing.[1] The decision was appealed to the reviewing board and was...

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