No. 01646196 (1999). EMPLOYEE: Daniel Torres.

• Case Date: June 28, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 01646196 (1999). EMPLOYEE: Daniel Torres COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Daniel Torres EMPLOYER: New England Card and Index Co. INSURER: The HartfordBOARD NO. 01646196REVIEWING BOARD DECISION (Judges Smith, McCarthy and Wilson)APPEARANCES Robert P. Kelley, Esq., for the employee David G. Sullivan, Esq., for the insurer SMITH, J. The employee appeals from a decision that awarded partial incapacity and medical benefits, but denied the claim for a penalty under the provisions of § 8(1). The employee claims that the judge erred in his interpretation of G.L. c. 152, § 8, by determining that the penalty provisions of subsection (1) do not apply to without-prejudice payments made pursuant to § 7(1) and referenced in § 8(1). 1 We disagree and affirm the decision. The relevant facts are not in dispute. On May 7, 1996, Torres injured his lower back in a slip and fall at work. He was out of work and was paid on a without-prejudice basis from May 7, 1996 to June 27, 1996. Torres returned to work on or about July 1, 1996 in a light duty position offered by the employer. (Dec. 4.) The insurer terminated its § 7 payments-without-prejudice on the basis of Torres's earnings at the light duty job. 2 (Insurer's Notification of Termination or Modification of Weekly Compensation During Payment-Without-Prejudice Period.) Torres left this job on or about July 19, 1996, because he could not perform the duties due to his compromised physical condition. On August 6, 1996, Torres sent certified letters to the employer and the insurer notifying them that he could not continue the light duty job because of his work-related disability. The letters requested that the insurer resume payments-without-prejudice. The employer and insurer signed the return receipts acknowledging receipt of the notice. (Employee Ex. 3.) The insurer did not resume payments until ordered to pay partial incapacity benefits by the hearing decision, which is the subject of this appeal. (Employee Ex. 3; Dec. 3, 9.) The judge denied Torres's claim that he was entitled to a penalty under the provisions of § 8(1) because the insurer failed to resume payments upon receipt of notice that his attempt to return to work had been unsuccessful. The judge found: [T]he Employee has alleged entitlement to...