No. 04209900 (2003). EMPLOYEE: William Auclair.

• Case Date: November 04, 2003
• Court: Massachusetts

Massachusetts Workers Compensation 2003. No. 04209900 (2003). EMPLOYEE: William Auclair COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: William Auclair EMPLOYER: Marshalls INSURER: TJX CompaniesBOARD NO. 04209900REVIEWING BOARD DECISION (Judges Carroll, Levine and Maze-Rothstein)APPEARANCES Bruce S. Lipsey, Esq., for the employee Joseph B. Bertrand, Esq., for the insurer CARROLL, J. The insurer appeals from a decision awarding, in pertinent part, ongoing total incapacity benefits under G. L. c. 152, § 34, and a twenty percent penalty on the retroactive component of that award under § 8(5), for the insurer's unilateral termination of benefits. While the insurer contended that it discontinued benefits due to its offer of a particular suitable job, pursuant to §§ 8(2)(d) and 35D(3), the administrative judge found that the job offer did not comport with the statutory requirements. We conclude that the judge appropriately levied the penalty against the insurer. We affirm the decision for the following reasons as to the penalty issue, and summarily affirm the decision in all other respects. The fifty-seven year old employee sustained a prior work-related herniated disc at L2-3, which resulted in surgery. After the employee returned to work as a manager in the shoe department, he experienced an onset of disabling back pain on October 26, 2000. The employee has treated with a number of physicians since that time. (Dec. 4-5.) The insurer paid without prejudice for a period and then properly discontinued its without-prejudice payments under § 7. The employee filed a claim for § 34 temporary total incapacity benefits and, after a § 10A conference, the insurer was ordered to pay ongoing § 34 benefits. The insurer appealed to a full evidentiary hearing. (Dec. 2.) Prior to the hearing date, the insurer terminated payment of those benefits, when the employee did not respond to a written job offer. (Dec. 7.) As of the time of the hearing, the employee's claims were for ongoing § 34 benefits, and a § 8(5) penalty for illegal discontinuance. The insurer defended on the basis of extent of incapacity, and denied that it had done anything wrong in discontinuing weekly benefits. (Dec. 2.) The employee was examined by a § 11A impartial physician, Dr. Frederick Ayers. Dr. Ayers diagnosed the employee as having...