No. 00719395 (1999). EMPLOYEE: Maria Franco-Duraes.

• Case Date: June 04, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 00719395 (1999). EMPLOYEE: Maria Franco-Duraes COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Maria Franco-Duraes EMPLOYER: Greater Lynn Mental Health INSURER: Liberty Mutual Ins. Co.BOARD NO. 00719395REVIEWING BOARD DECISION (Judges Maze-Rothstein, Carroll and Levine)APPEARANCES John J. Morrissey, Esq., for the Employee Clyde B. Kelton, Jr., Esq., for the Insurer MAZE-ROTHSTEIN, J. The employee appeals a decision, which denied her claim for G. L. c. 152, § 8(1), penalties due to the insurer's failure to give the required seven-day notice prior to terminating weekly benefits, which were being paid without prejudice. We affirm the decision. Maria Franco-Duraes, sustained a low back strain while at work on February 10, 1995. The insurer timely commenced voluntary payment of temporary, total incapacity benefits on a "without prejudice" basis. See G. L. c. 152, § 7(1). 1 After payments were underway, the insurer sent the employee a Notification of Payment, dated March 21, 1995. Next, on July 19, 1995, the insurer sent a Notification of Termination to the employee by certified mail. The employee received the notice on July 20, 1995. Benefits were paid through July 24, 1995, which was two days short of the required seven-day notice requirement. (Dec. 3.) See G L. c. 152, § 8(1). 2 Rather than file a claim for further weekly compensation benefits, the employee chose to file a claim for a ten thousand dollar § 8(1) penalty due to the insurer's failure to give the required seven day notice of payment termination under that statute. (Dec. 3-4.) G. L. c. 152, § 8(1). Following a § 10A conference, the judge filed an order denying payment of the penalty sought. The employee appealed to a full evidentiary hearing. (Dec. 2.) At hearing, the employee and a representative of the insurer testified. (Dec. 1.) Ms. Duraes contended that a penalty under § 8(1) should be awarded because the insurer failed to give the required 7 day notice before terminating weekly § 34 payments without prejudice. The judge disagreed, reasoning as follows: A penalty may not be imposed upon [the insurer] pursuant to G. L. c. 152, § 8(1) unless it has failed to make all payments due to the employee 'under the terms of [an] order, decision, arbitrator's decision, approved lump sum or other...