Donald Denham Employee
Kiewit Corporation Employer
Kiewit Corporation Self-insurer
Sullivan and McLaughlin Companies Employer
AIM Mutual Insurance Company Insurer
No. 035801-14
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
November 26, 2018
This
case was heard by Administrative Judge Benoit.
Paul
Durkee, Esq., for the employee
James
E. Ramsey, Esq., for Kiewit Corporation
Peter
Harney, Esq., for AIM Mutual Insurance Company at hearing
Holly
B. Anderson, Esq. for AIM Mutual Insurance Company on appeal
Long,
Fabricant and Koziol, Judges.
REVIEWING BOARD DECISION
LONG,
J.
The
subsequent insurer in this successive insurer claim, AIM
Mutual Insurance Company, (hereinafter “AIM”),
appeals from a decision ordering it to pay the employee
ongoing § 34 temporary total incapacity and §§
13 and 30 medical benefits. The insurer presents four
objections to the hearing decision. Finding merit in its
arguments that the administrative judge erred when he adopted
inconsistent and conflicting medical opinions, and that he
further erred when he failed to address its defenses of
proper notice, proper claim and the employee’s
violation of § 27A,[1] we vacate the decision and recommit
to the administrative judge to make additional findings, and
to resolve the internally inconsistent medical opinions
relied upon in the decision.
The
employee filed two claims for benefits, in which he alleged
an incapacity to work due to the cumulative effects of his
job as a union electrician. One claim was filed against the
self-insurer, Kiewit Corporation, (hereinafter
“Kiewit”), based upon an April 4, 2013, alleged
injury date, corresponding to the employee’s last day
of work for the employer, Kiewit Corporation. The other claim
was filed against the subsequent insurer, AIM, based upon a
January 31, 2014, alleged injury date, which was also the
employee’s last day of work for the employer, Sullivan
and McLaughlin Companies. (Dec. 1-2.) A conference was held
on both claims on August 4, 2015, after which the judge
issued an order of payment against AIM for § 34 benefits
from August 1, 2014 to date and continuing, as well as §
30 benefits. The judge denied the claim filed against Kiewit.
The employee appealed the denial, and AIM appealed the order
of payment. An impartial examination was conducted by Dr.
Peter Schur on November 23, 2015. (Dec. 2.)
The
hearing on the claims took place on June 8, 2016 and July 29,
2016. The employee sought § 34, or in the alternative,
§ 35, benefits, from August 1, 2014, to date and
continuing, as well as medical benefits pursuant to
§§ 13 and 30. The defenses raised by the
self-insurer and AIM were liability, disability and extent
thereof, causal relationship, entitlement to §§ 13
and 30 medical benefits, proper notice, § 1(7A)[2] and §
27A. The judge allowed the introduction of additional medical
evidence, and the employee was the only witness to testify at
the hearing. (Dec. 3.) The hearing decision was issued on
June 15, 2017. The judge denied and dismissed the claim
against Kiewit and ordered AIM to pay the employee § 34
benefits from August 1, 2014, to date and continuing, plus
medical benefits pursuant to §§13 and 30. The judge
relied upon the medical opinions of Dr. Schur and Dr.
Christopher Vinton to...
