Employee: Adam P. Carey (deceased)
Claimants: Richard A. Carey and Margaret L. Carey
Employer: Kernwood Country Club
Insurer: Eastern Casualty Insurance Company
Board No.: 036316-00

(Judges Costigan, McCarthy and Fabricant [1])

Kevin T. Daly, Esq., for the claimants
Carl F. Schmitt, Esq., for the insurer
Martin B. Schneider, Esq., for the employer

This case returns to the reviewing board on remand from the Appeals Court, Carey's (dependents') Case, 66 Mass. App. Ct. 749 (2006), which decision affirmed in part, reversed in part, and vacated in part the decision of the reviewing board. [2] The court affirmed the adminstrative judge's calculation of the employee's average weekly wage, as summarily affirmed by the reviewing board, but reversed our decision, and ruled in the claimants' favor, as to the employer's violation of G. L. c. 149, § 62, and the claimants' entitlement to double compensation pursuant to G. L. c. 152, § 28.

In vacating our decision that the claimants were entitled to the maximum benefits allowed by G. L. c. 152, §§ 31 and 32, the court directs us to remand this matter to the administrative judge "for a determination as to the claimants' entitlement to maximum benefits, and a recalculation of compensation due the claimants in accordance with [its] opinion." Id. at 758. We do so. As authorized by the Appeals Court, the administrative judge may take new evidence as to the claimants' dependence upon the employee at the time of his injury.

So ordered.

Patricia A. Costigan
Administrative Law Judge

William A. McCarthy
Administrative Law Judge

Bernard W. Fabricant
Administrative Law Judge

Filed: August 21, 2006

[1] As two members of the original panel no longer serve on the reviewing board, the panel has been reconstituted.

[2] 18 Mass. Workers' Comp. Rep. 77 (2004). See also, 19 Mass. Workers' Comp. Rep. 265 (2005)(prior award of attorney's fee vacated following single justice decision).