No. 07594789 (1999). EMPLOYEE: Donna Thompson.
Case Date | December 14, 1999 |
Court | Massachusetts |
Massachusetts Workers Compensation
1999.
No. 07594789 (1999).
EMPLOYEE: Donna Thompson
COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Donna Thompson EMPLOYER: Sturdy Memorial
Hospital INSURER: Sturdy Memorial HospitalBOARD NO. 07594789REVIEWING BOARD DECISION (Judges Maze-Rothstein, Levine and Carroll)APPEARANCES
James S. Aven, Esq., for the employee
Linda C. Scarano, Esq., for the self-insurer at hearing
Paul M. Moretti, Esq., for the self-insurer on
appeal
MAZE-ROTHSTEIN, J. The self-insurer
appeals from a third decision following a second recommittal by the reviewing
board. Because this decision is likewise flawed, we recommit the case once
again.
The facts of this accepted October 27, 1989 industrial injury are
set out in Thompson v. Sturdy Memorial Hosp., 10 Mass. Workers' Comp. Rep. 133
(1996), and need not be repeated here. Further, when the self-insurer appealed
the second decision on its 1993 complaint to discontinue, the reviewing board
again recommitted the case. That second recommittal directed the judge to make
further findings on certain specifics, particularly a job offer as an
admissions registrar that the self-insurer claimed to be dispositive of the
employee's earning capacity:
We therefore reverse the finding that the job offer did not meet
the requirements of c. 152, § 35D(3). We affirm the finding that the night
shift is unsuitable and not within the employee's ability to perform and
recommit the case for further findings on the other shifts offered with the
appropriate analysis under Scheffler [419 Mass. 251, 256 (1994)], and §
35D and on the issue of continuing medical disability and causal relationship.
Since even more time has passed since the 1993 formulation of the record relied
on for Decision II, in the interest of justice, the parties should be permitted
to present evidence updating the employee's medical and vocational condition,
if it has changed.
Thompson v. Sturdy Memorial Hosp., 11 Mass. Workers' Comp. Rep.
663, 668 (1997)["Thompson II"].
On the second recommittal, the judge took further testimony from
the employee, and from an employer witness relative to the facts surrounding
the job offer. He recited testimony of the employer witness. That witness
stated that if the employee would attempt to return to work, all accommodations
necessary would be made to...
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