No. 00166095 (1999). EMPLOYEE: Donald Kinder.

• Case Date: November 19, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 00166095 (1999). EMPLOYEE: Donald Kinder COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Donald Kinder EMPLOYER: Lance, Inc. INSURER: Commercial Union Insurance Co.BOARD NO. 00166095REVIEWING BOARD DECISION (Judges McCarthy, Smith and Wilson)APPEARANCES Melissa E. Brooks, Esq., for employee Paul M. Moretti, Esq., for the insurer on appeal Linda D. Oliveira, Esq., for the insurer at hearing MCCARTHY, J. Commercial Union Insurance Company appeals from a decision in which an administrative judge awarded Mr. Kinder weekly compensation benefits based on an average weekly wage that included his earnings from "concurrent" employment in Rhode Island. Because such earnings were not derived from the employee's service to an employer insured "for the payment to his employees by an insurer of the compensation provided for by this chapter," they were improperly included in Mr. Kinder's average weekly wage. See G.L. c. 152, §§ 1(1) and 1(6). On that basis, and in light of the recent decision in Letteney's Case, 429 Mass. 280 (1999), we reverse the decision. 1 The facts were stipulated. Donald Kinder was employed by Lance Buick Pontiac in Attleboro, MA on February 10, 1995. On or about that date Mr. Kinder jumped off the back of a truck and developed bilateral tarsal tunnel syndrome. The insurer accepted liability for the injury. Mr. Kinder's average weekly wage with Lance Buick Pontiac was $651.39 on the date of injury. Mr. Kinder had a second job at Precision Harley-Davidson, where he earned $60.88 per week. Precision Harley-Davidson, located in Rhode Island, carried workers' compensation insurance with Beacon Mutual Insurance Company, a Rhode Island insurer licensed only to sell insurance in that state. The employee returned to work full duty with Lance Buick Pontiac on January 6, 1997. (Dec. 2.) Because of his February 10, 1995 industrial injury he did not return to work at Precision Harley-Davidson. (Dec. 2-3.) The single issue before the judge at the hearing was whether concurrent employment with an out-of-state employer should be included in the computation of an employee's average weekly wage. (Dec. 2.) The judge determined that the employee was entitled to benefits based on his earnings from Precision Harley-Davidson, an out-of-state employer...