No. 03434296 (1999). EMPLOYEE: Romauld Chery.

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

Massachusetts Workers Compensation 1999. No. 03434296 (1999). EMPLOYEE: Romauld Chery COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Romauld Chery EMPLOYER: Pine Street Inn INSURER: Mass. Bay SIGBOARD NO. 03434296REVIEWING BOARD DECISION (Judges Carroll, Levine and Maze-Rothstein)APPEARANCES Michael C. Akashian, Esq., for the employee James W. Stone, Esq., for the insurer CARROLL, J. The insurer appeals the administrative judge's award of a closed period of benefits to a homeless man employed in a transitional job and also a beneficiary of a housing program offered by the employer. The insurer contends that the employee should be barred from compensation because his injury, which was the result of an argument with a co-employee, did not arise out of or in the course of his employment and because he engaged in serious and wilful misconduct. In the alternative, the insurer argues that the case should be recommitted because the administrative judge failed to make adequate subsidiary findings of fact. Finding no error, we affirm the decision of the administrative judge. Romauld Chery, who was 34 years old at the time of the hearing, is a native of Haiti; he has one dependent child. He has a seventh grade education and prior experience as a farm worker, tagger and warehouse employee, taxi driver and dispatcher. (Dec. 2-3.) The Pine Street Inn, a charitable organization dedicated to helping the homeless, hired the employee as a warehouse worker in February of 1996 as part of a transitional job and housing program it offered to homeless persons. (Dec. 3.) The employee's job involved loading and unloading trucks for seven hours a day and required that he lift 50 to 80 pounds. Id. The employer provided the employee and his co-workers with living quarters on the employer's property in Quincy. The employer also provided a bus to transport the employees from their Quincy residence to the employer's warehouse in Boston where they worked. Id. On July 9, 1996, while at work, the employee got into an argument with a co-worker arising out of the co-worker's putting aside for himself an iron that had been unloaded from a truck. Although the employer had a policy that workers could put items aside for personal use and pay for them later, the employee objected to the co-worker's actions and moved the iron. The co-worker confronted the employee, and an argument ensued. A supervisor intervened and temporarily ended the argument. Id. Just before 3:30 p.m. on that day, the employee punched out of work and walked across the street from the employer's warehouse to a designated location on a public street to wait for the bus provided by the employer to transport its employees to and from work. While waiting for the bus, the employee met the co-worker with whom he had earlier argued, and the two again exchanged words. The co-worker struck the employee, who fell to the ground complaining of pain in his right knee. Id. A nurse employed by the employer examined the employee, and he was seen later that day at Boston City Hospital. (Dec. 4.) After receiving various treatments, he underwent arthroscopic surgery at Massachusetts General Hospital on October 23, 1996. Though still experiencing pain and popping in his knee, the employee, on July 1, 1997, began working three days a week as a dispatcher earning $150.00 per week. Id. His average weekly wage as an employee of Pine Street Inn was $108.46. (Dec. 2.) The employee's claim for benefits was denied following a § 10A conference held on December 12, 1996. The employee appealed to a hearing de novo, which was held on August 4, 1997 and September 16, 1997. (Dec. 1, 2.) At the hearing, the report of the impartial medical examiner, Dr. John C. Molloy, was admitted into evidence under § 11A. Dr. Molloy diagnosed the employee with a torn right medial meniscus and a torn right anterior cruciate ligament, and found him to be...