No. 06784586 (1999). EMPLOYEE: Donald A. Yates.

• Case Date: April 01, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 06784586 (1999). EMPLOYEE: Donald A. Yates COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Donald A. Yates EMPLOYER: ASCAP INSURER: Commerce and IndustryBOARD NO. 06784586REVIEWING BOARD DECISION (Judges Wilson, McCarthy and Smith)APPEARANCES Frederick T. Golder, Esq., for the employee Edward M. Moriarty, Jr., Esq., for the insurer WILSON, J. The employee appeals from a decision in which an administrative judge denied and dismissed his claim for various closed periods of incapacity benefits related to an industrial injury of a psychological nature. The claim has been the subject of six prior hearing and reviewing board decisions. In the most recent of these, Yates v. ASCAP, 11 Mass. Workers' Comp. Rep. 447 (1997) ("Yates III"), the reviewing board reversed an administrative judge's denial of the employee's claim on the grounds of no liability, determining that liability was established as a matter of law. Id. at 454-456. The reviewing board therefore recommitted the case to the administrative judge for further findings on the narrow issue of the extent of the employee's incapacity. We reverse the latest decision in part, and recommit the case a fourth time, as the administrative judge who decided the case de novo on recommittal based his decision largely on his discrediting of the employee's testimony, without actually having heard it. There is no reason for a further exposition of the facts of this claim for emotional injuries arising from a 1980 industrial injury. See Yates III, supra; Yates v. ASCAP, 6 Mass. Workers' Comp. Rep. 97 (1992); Yates v. ASCAP, 9 Mass. Workers' Comp. Rep. 550 (1995). Germane to the appeal at hand are the following procedural matters: Upon receiving the case recommitted in Yates III, the administrative judge recused himself from hearing the employee's claim on the basis of bias. (Dec. 472.) The case was reassigned to the present administrative judge. The judge reported in his decision that the parties agreed to a hearing on the extent of incapacity issue based only on the six prior hearing and reviewing board decisions. (Dec. 472.) 1 With that stipulation, another recommittal was, as a practical matter, nearly a foregone conclusion. Extent of incapacity to work is a question of fact, Barry's Case, 235 Mass. 408, 410 (1920), to...