Workers Compensation Summary of Reviewing Board Cases – June 2017

Average Weekly Wage

Ronan Staff v. Lexington Buildiers, Inc., ____ Mass. Workers Comp. Rep. ____ (Koziol, J. 6/27/2017). This decision focuses on average weekly wage, and the inability to obtain a higher average weekly wage when the employee failed to appeal from the Conference Order, and did not seek to file a late appeal. Average weekly wage was the sole issue. The Employee sought a higher average weekly wage, which was granted at Conference. The Employee did not appeal or seek to file a late appeal. At Hearing, the Administrative Judge determined that the Employee had a higher average weekly wage than originally sought and granted this higher wage. The Insurer appealed, arguing that this was improper because the Conference Order was not appealed, nor was a late appeal sought. The Reviewing Board agreed and ordered that the average weekly wage ordered at Conference be paid. The Reviewing Board also found that the Administrative Judge should not have commented on the Employees knee injury as it was not before the Court.

Elizabeth Brandao v. Judge Rotenberg Education Center, ____ Mass. Workers Comp. Rep. ____ (Fabricant, J. 6/8/2017). Both Parties appealed the Hearing Decision. The Insurer argued that the adopted average weekly wage was improper and the calculation of earning capacity was not based on the evidence. The Employee argued that aqua therapy treatment was not considered. At Hearing the Administrative Judge asked the Parties whether they agreed to the stipulation of the average weekly age, both Parties agreed, and as a result the Reviewing Board affirmed the decision as to the average weekly wage. The Reviewing Board recommitted the issue of earning capacity, finding that, while there was evidence to support the employees ability to work with restrictions, there was no analysis or explanation as to why the employee was not capable of working full time. As to the issue of aqua therapy, it was not before the Court, so the Reviewing Board found it was proper for the Administrative Judge not to address that issue.


Suzana Amorium v. Tewksbury Donuts, Inc., ____ Mass. Workers Comp. Rep. ____ (Fabricant, J. 6/9/2017). The Insurer appealed the Hearing decision for multiple reasons. The Reviewing Board only addressed the Administrative Judges failure to rule on deposition objections and the Administrative Judges alleged bias. The case was recommitted to the Administrative Judge for a determination as to whether he can impartially decide the case. If so, then he should rule on the objections made and supported in the two medical depositions. Once that is accomplished, he should reconsider his findings and make additional findings and ruling as necessary.

Thomas Gleason, Jr. v. Trial Courts-Court Officers, ____ Mass. Workers Comp. Rep. ____ (Fabricant, J. 6/28/2017). This decision emphasizes the need to review the record and decisions carefully. The Employee appealed and the Reviewing Board recommitted. First, it wasnt clear that the Judge considered all of the medical evidence before him, and failure to consider medical evidence submitted requires recommittal for consideration of that evidence. Second, the dates didnt match up with the medical evidence and while it could have been a scriveners error, it was not clear.