No. 08314789 (1999). EMPLOYEE: James Hopkins.

• Case Date: September 08, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 08314789 (1999). EMPLOYEE: James Hopkins COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: James Hopkins EMPLOYER: Digital Equipment Corp. INSURER: Liberty Mutual Insurance Co.BOARD NO. 08314789REVIEWING BOARD DECISION (Judges Carroll, Levine and Maze-Rothstein)APPEARANCES Roger P. Lipton, Esq., for the employee Patricia M. Vachereau, Esq., for the insurer CARROLL, J. The employee appeals from an amended decision, which increased his earning capacity and awarded a reduced attorney's fee. We summarily affirm the earning capacity determination. But because the administrative judge reduced the attorney's fee for reasons other than those allowed by G.L. c. 152, § 13A(5), we reverse the fee award and award the statutory fee. The relevant facts are not in dispute. On October 16, 1989, James Hopkins experienced a burning pain in the left aspect of his neck while lifting sheet metal as part of his employment for Digital. (Dec. 3.) He remained out of work for about two months before returning to light duty assignment for approximately six months. He stopped work altogether on May 28, 1990, on advice from his treating doctor. Id. After stopping work, Hopkins filed a claim for weekly incapacity benefits. That claim was the subject of a hearing before a prior administrative judge, who filed a decision awarding approximately one month of § 34 temporary total incapacity benefits and continuous § 35 temporary partial incapacity benefits thereafter, based on an assigned earning capacity of $200.00 per week. (Stipulation #3, incorporating into the record the earlier decision dated February 9, 1993.) On September 3, 1997, the insurer's request for a further modification or discontinuance of benefits was conferenced before another administrative judge.1 The request was denied and the insurer appealed giving rise to a hearing de novo. In the decision on appeal before us, the administrative judge adopted the opinions of the § 11A medical examiner as well as those of a vocational consultant. After considering the employee's age (62), limited physical restrictions, experience and training (electrical certificate, associates degree and work experience as an electronic technician), the judge determined that the employee had an earning capacity of $450.00 per week, an amount...