Denham, 112618 MAWC, 035801-14

Docket Nº:035801-14
Case Date:November 26, 2018
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...

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