Decision  Anthony M. Catalano v. Massachusetts Bay Transportation Authority (M.B.T.A.)

Date:	07/31/2019
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 015020-14
Location:	Boston

• Employee: Anthony M. Catalano
• Employer: Massachusetts Bay Transportation Authority (M.B.T.A.)
• Self Insurer: M.B.T.A.

KOZIOL, J.  The employee appeals from a hearing decision ordering the self-insurer to pay him § 35 benefits from February 1, 2018, and continuing, at a rate of $885.96 per week, based on a minimum wage earning capacity of $440.00 per week and an average weekly wage of $1,181.28, along with payment of §§ 13 and 30 medical benefits for treatment stemming from his June 20, 2014, industrial injury.  (Corrected Order, Dec. 511.)¹ We agree with the employee that the judge erred as a matter of law in applying the § 1(7A) “a major cause” standard of causation to his analysis of the employee’s low back injury, requiring us to vacate the decision and recommit the case for further findings of fact.

¹  The judge’s September 25, 2018, decision ordered the self-insurer to pay the employee § 35 benefits at a rate of $907.94 per week, based on a minimum wage earning capacity of $440.00 per week and an average weekly wage of $2,017.65.  Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3 (2002)(judicial notice taken of board file).  Although the judge did not issue a new decision, and as a result the decision that is attached to the employee’s appeal contains the original order, the judge issued a one-page “Corrected” order after the self-insurer alerted his office that the employee’s workers’ compensation rate under § 34 was capped at the State Average Weekly Wage on the date of the employee’s accident, June 20, 2014, which was $1,181.82.  Rizzo.  supra.  As a result, pursuant to § 35, the maximum partial incapacity benefits were capped at $885.96 per week.