Decision  Brian LaFleur v. MCI Shirley

Date:	11/30/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 009526-08
Location:	Boston

• Employee: Brian LaFleur
• Employer: MCI Shirley
• Self Insurer: Commonwealth of Massachusetts

KOZIOL, J. The self-insurer appeals from a decision issued by the administrative judge after the reviewing board recommitted the case for further findings of fact concerning the nature of a 1998 work injury and its impact, if any, on the applicability of § 1(7A) to the subject April 9, 2008, work injury.¹ LaFleur v. M.C.I. Shirley, 24 Mass. Workers’ Comp. Rep. 301 (2010). See Stecchi v. Tewksbury State Hosp., 23 Mass. Workers’ Comp. Rep. 347, 349 n.5 (2009); Vieira v. D’Agostino Assocs., 19 Mass. Workers’ Comp. Rep. 50, 52-53 (2005)(outlining steps required for proper analysis of combination injuries under § 1(7A) “major” cause standard). We discuss only four of the nine issues raised by the self-insurer on appeal because they are dispositive, requiring reversal of the decision and further recommittal for a hearing de novo before a different judge on the issue of the employee’s entitlement to weekly incapacity benefits.² Specifically, the self-insurer argues: 1) the judge violated its due process rights by issuing an “interim order” requiring it to resume payment of weekly benefits awarded in the § 10A conference order; 2) the judge erred by conducting a status conference off the record, over its objection, and that the judge’s conduct and demeanor during that status conference violated the self-insurer’s due process rights and demonstrated bias against the self-insurer; 3) the judge erred by exceeding the scope of the recommittal order; and, 4) the judge violated the self-insurer’s due process rights by inappropriately prejudging a potential § 34A claim. 

¹  General Laws c. 152, § 1(7A) , provides, in pertinent part:

If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.

²  As they were finally determined in our prior decision, the issue of § 50 interest and the self-insurer’s defense based on the employee’s application for and receipt of retirement benefits, will not be part of the issues in dispute in the hearing de novo before the new administrative judge. LaFleur, supra.