Decision  Alfred T. Fraser v. Fraser Fish Limited

Date:	11/02/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 017556-04
Location:	Boston

• Employee: Alfred T. Fraser
• Employer: Fraser Fish Limited
• Insurer: Granite State Insurance Company

HORAN, J. The insurer appeals¹ from a decision awarding the employee § 34² benefits to their statutory exhaustion, followed by an award of ongoing § 35³ benefits at the maximum rate. In light of the issue raised on appeal, and the employee's pending claim for § 34A benefits retroactive to the date of the statutory expiration of § 34 benefits, we recommit the case for further findings of fact.

¹ Initially, the employee also appealed on the issue of average weekly wage. Following oral argument, the employee withdrew his appeal.

² General Laws c. 152, § 34, provides:

While the incapacity for work resulting from the injury is total, during each week of incapacity the insurer shall pay the injured employee compensation equal to sixty percent of his or her average weekly wage before the injury, but not more than the maximum weekly compensation rate, unless the average weekly wage of the employee is less than the minimum weekly compensation rate, in which case said weekly compensation shall be equal to his average weekly wage.

The total number of weeks of compensation due the employee under this section shall not exceed one hundred fifty-six.

³ General Laws c. 152, § 35, provides, in pertinent part:

While the incapacity for work resulting from the injury is partial, during each week of incapacity the insurer shall pay the injured employee a weekly compensation equal to sixty percent of the difference between his or her average weekly wage before the injury and the weekly wage he or she is capable of earning after the injury, but not more than seventy-five percent of what such employee would receive if he or she were eligible for total incapacity benefits under section thirty-four. . . .

The total number of weeks of compensation due the employee under this section shall not exceed two hundred sixty. . . .