Employee: Robert Bracchi, Jr.
Employer: Insurance Auto Auctions
Insurer: Sentry Insurance Company
Board No.: 039809-03

(Judges McCarthy, Fabricant and Koziol)

Charles E. Berg, Esq., for the employee
Craig A. Russo, Esq., for the insurer

McCARTHY, J. The insurer appeals from a decision of the administrative judge denying and dismissing its complaint to modify or discontinue the employee's weekly incapacity benefits. The insurer challenges the judge's order to reinstate payment of § 34 total incapacity benefits, and argues the judge erred in awarding ongoing § 35 partial incapacity benefits not claimed by the employee. For the reasons that follow, we affirm the decision.

The parties stipulated that on December 8, 2003, while working for the employer, Mr. Bracchi sustained an industrial injury when he slipped and tumbled down the ramp of a car carrier. (Dec. 5.) His treatment included a laminectomy with excision of a herniated lumbar disc. He has not returned to work since the accident. Id.

The insurer began payment of weekly § 34 benefits and, in due course, it filed a complaint for discontinuance. [1] On July 7, 2005, after a § 10A conference, an order authorized the insurer to discontinue § 34 benefits and to pay the employee § 35 benefits. Both parties appealed. (Dec. 1.)

In his hearing decision, issued some six months after the date on which the employee's § 34 benefits would have exhausted, the judge denied and dismissed the insurer's complaint for discontinuance. (Dec. 10.) In so doing, he adopted the medical opinion of Dr. Frederick S. Ayers, a board certified orthopedic surgeon who examined the employee pursuant to § 11A(2), and causally related the employee's disability to his work injury. (Dec. 6-7.) Although the § 11A examiner opined the employee could work in a light duty position, the judge found that with a work history predominantly labor intensive, his current symptoms and limitations with respect to lifting, bending, stooping, etc., precluded the employee from even that kind of work. (Dec. 7-8.) The judge credited the employee's complaints of pain, symptom unpredictability and the presence of good days and bad days, all of which militated against an ability to work on a regular, sustained basis. (Dec. 8.)

The judge concluded that the employee was totally incapacitated as a result of the industrial injury from April 14, 2005, to date and continuing. Id. [2] The judge ordered the insurer to pay § 34 benefits until statutory exhaustion, and then maximum § 35 benefits, as the employee's disability continued unchanged. (Dec. 10.)

The insurer contends that absent a claim before the judge, the award of § 35 benefits was erroneous. We disagree.

It is well-established that a judge, faced with a claim for § 34 incapacity benefits only, may award "lesser included" § 35 benefits for the same period. An employee's failure to claim § 35 incapacity benefits in the alternative does not bar a judge's award of such benefits. Tredo v. City of Springfield School Dept., 19 Mass. Workers' Comp. Rep. 118 (2005). The only requirements that must be satisfied are that the period in question is a period in which benefits are sought, and that the employee has shown that he is incapacitated. Id. at 123; F allon v. Department of Revenue, 19 Mass. Workers' Comp. Rep. 298, 299 n.1 (2005)(judge may award "lesser included" § 35 benefits only for period in which some incapacity is alleged).

Here by virtue of the insurer's complaint to modify or discontinue weekly compensation, the employee's incapacity was at issue for the period from April 14, 2005 to date and continuing. (Dec. 2.) Therefore, the administrative judge appropriately addressed a time period within the scope of the dispute when he awarded ongoing § 35 benefits. Where § 34 benefits have been exhausted, it would be contrary to the Act's humanitarian purpose, Young v. Duncan, 218 Mass. 346, 349 (1914), to deny benefits to a more seriously injured worker while granting benefits to those less seriously injured. See Marino v. M.B.T.A., 7 Mass. Workers' Comp. Rep. 140, 142 (1993). Moreover, the expert medical opinions the judge adopted and his proper vocational analysis amply support his award of § 35 incapacity benefits. Accordingly, we affirm the judge's decision. Pursuant to § 13A(6), the insurer is directed to pay employee's counsel a fee of $1,495.34.

So ordered.

William A. McCarthy
Administrative Law Judge
Bernard W. Fabricant
Administrative Law Judge
Catherine Watson Koziol
Administrative Law Judge

Filed: October 29, 2008

[1] We take judicial notice of the contents of the board file. Rizzo v. M.B.T.A., 16 Mass. Workers' Comp. Rep. 160, 161 n.3 (2002).

[2] The judge correctly noted that the period in dispute as to extent of the employee's incapacity began April 14, 2005, the date the insurer's complaint to modify or discontinue benefits was filed. (Dec. 6.) Stowe v. M.B.T.A., 12 Mass. Workers' Comp. Rep. 458 (1998), citing Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354 (1995).