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...