Patrick Heilig Employee
Verizon Employer
New Hampshire Insurance Insurer
Nos. 022066-12, 003541-16
Massachusetts Workers Compensation Decisions
Commonwealth of Massachusetts Department of Industrial Accidents
August 29, 2019
The
case was heard by Administrative Judge Rose.
Daniel
P. Napolitano, Esq., for the employee at hearing and on
appeal
Susan
G. McDonald, Esq., for the employee on appeal
Wayne
Todd Huston, Esq., for the insurer
Fabricant, Koziol, and Long, Judges
REVIEWING BOARD DECISION
FABRICANT, J.
The
case is presented on cross-appeals from a decision in which
the administrative judge denied the employee’s claim of
a second injury dated April 18, 2013, and ordered § 34
benefits from January 1, 2016, through January 26, 2017,
followed by ongoing § 35 benefits, from January 27,
2017, based on an August 2, 2012, industrial injury. For the
reasons that follow, we vacate the award of § 34
benefits for the period from January 1, 2016, to January 27,
2017, and order payment of maximum partial incapacity
benefits for that time period. We affirm the decision on all
other issues.
The
employee began working for the employer on September 30,
1996, as a lineman. His duties included driving a line truck,
installing telephone poles and wires, digging holes, and
troubleshooting. (Dec. 4.) On August 2, 2012, he was in the
course of his employment when a four-foot high retaining wall
he was standing on collapsed, causing him to fall and land on
his right shoulder. The employee continued to work but
ultimately required right shoulder surgery. He then returned
to light duty work in early January 2013, and on April 18,
2013, he left work. (Dec. 5; Tr. 35, 44.)
The
insurer voluntarily paid the employee § 34 temporary
total incapacity benefits commencing on September 13,
2012.1 The insurer filed a complaint for
discontinuance or modification of the employee’s §
34 benefits on February 16, 2015.2 At the § 10A conference
on May 13, 2015, that complaint was denied by a different
judge, who awarded the employee § 34A permanent and
total incapacity benefits beginning on January 1, 2016. (Dec.
2.) The insurer appealed that order. By stipulation of the
parties, the employee joined a claim for an additional injury
to the same shoulder, occurring on April 18, 2013, the
employee’s last day of work. A hearing de novo took
place on February 22, 2017. (Dec. 2, 3.)[3]
The
employee underwent an impartial examination performed by Dr.
Victor Conforti on June 16, 2015. On motion of the employee,
the judge found the medical issues to be complex, and
additional medical evidence was admitted. (Dec. 2, 3.)
The
judge...