Heilig, 082919 MAWC, 022066-12

Case DateAugust 29, 2019
CourtMassachusetts
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...

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