No. 05208095 (1999). EMPLOYEE: Elizabeth Fitzgerald.

• Case Date: October 25, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 05208095 (1999). EMPLOYEE: Elizabeth Fitzgerald COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Elizabeth Fitzgerald EMPLOYER: Special Care Nursing Service INSURER: Reliance National IndemnityBOARD NO. 05208095, 03047896REVIEWING BOARD DECISION (Judges Maze-Rothstein, Levine and Carroll)APPEARANCES Thomas C. Regan, Esq., for the employee Kevin M. Carroll, Esq., for the insurer, Reliance National Indemnity William R. Maher, Esq., for the insurer, Cigna Property and Casualty MAZE-ROTHSTEIN, J. The insurer appeals from a decision that awarded the employee closed periods of partial and temporary total incapacity benefits, and ongoing partial incapacity benefits. The insurer argues that including travel reimbursements along with an additional hourly wage paid in lieu of that travel payment, in the employee's average weekly wage was contrary to law. The insurer also argues that the calculation of the employee's earning capacity for the purposes of the G.L. c. 152, § 35 awards - which the judge based on the employee's actual earnings for each week - is erroneous. We recommit the decision for the following reasons. Elizabeth Fitzgerald worked as a traveling nurse. She visited as many as six patients in their homes every day. In addition to her regular compensation, the employer paid the employee's work-related travel, by mileage, the employer paid Ms. Fitzgerald a fixed sum for each mile of related driving. Moreover, if Fitzgerald spent her whole workday in one location, she was given an additional $0.31 per hour to make up for the lost mileage payments. Ms. Fitzgerald worked up to sixty hours per week. Her average weekly wage without the travel payments, both mileage and the $0.31 per hour adjustments, was $455.19; her average weekly wage, when it included that travel component and the $0.31 adjustment, was $505.31. (Dec. 3; 5/10/99 Stipulation to Reviewing Board.) Ms. Fitzgerald suffered two industrial injuries. The first was an injury to her right leg on December 15, 1995, and the second was to her right knee on August 12, 1996. (Dec. 2.) She returned to work after both injuries, with her work restricted to light duty for no more than forty hours per week. (Dec. 4.) The insurer accepted liability for these injuries and defended the employee's...