No. 03135196 (1999). EMPLOYEE: James Ohop.

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

Massachusetts Workers Compensation 1999. No. 03135196 (1999). EMPLOYEE: James Ohop COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: James Ohop EMPLOYER: Schott Fiber Optics, Inc. INSURER: Travelers Ins. Co.BOARD NO. 03135196REVIEWING BOARD DECISION (Judges McCarthy, Wilson and Smith)APPEARANCES Walter J. Avis, Jr., Esq., for the employee on appeal A. Ninoska Rosado, Esq., for the employee at hearing Michael F. Ashe, Esq., for the insurer MCCARTHY, J. James Ohop, who is now twenty-five years of age, started work as an apprentice glassmaker for Schott Fiber Optics in February 1996. On August 6, 1996, Mr. Ohop sustained a low-back injury when he slipped while in the course of his employment. As of the close of the hearing record, Ohop had not returned to work. The insurer resisted the claim for benefits and the case came on for conference on January 30, 1997. The following day an order issued awarding weekly temporary total incapacity benefits under § 34 of the Act from August 7, 1996 to December 30, 1996 at the weekly rate of $202.32, based on an average weekly wage of $337.20. The order further directed payment of partial incapacity benefits under § 35 at the weekly rate of $139.32, based on an assigned earning capacity of $105.00 per week from December 31, 1996 and continuing. Cross appeals were taken from this conference order. On April 8, 1997, Dr. John D. Colley performed an impartial medical exam under the provisions of §11A of the Act. Doctor Colley's report was found to be inadequate for the period preceding April 8, 1997 and the parties were granted permission to submit additional medical evidence covering the period August 7, 1996 to April 8, 1997. Following a full evidentiary hearing, a decision was filed awarding Mr. Ohop weekly benefits under § 34 of the Act from August 7, 1996 through December 8, 1997 (the date of the hearing) and thereafter on going § 35 benefits from December 8, 1997 at a rate of $94.32 based on an assigned earning capacity of $180.00 per week. We have the case on appeal by the insurer. The insurer first argues that the finding that Mr. Ohop was temporarily totally incapacitated until December 8, 1997 is arbitrary and capricious because it is a general conclusion unsupported by any subsidiary findings of fact grounded upon record evidence. We agree that it is difficult...