Decision  Cesare Comolli v. ADE Corp.

Date:	03/16/2004
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 025888-01
Location:	Boston

• Employee: Cesare Comolli
• Employer: ADE Corp.
• Insurer: Manufacturers of Massachusetts SIG

CARROLL, J. The employee appeals the administrative judge's finding of no work incapacity due to his ability to perform the functions of a modified job offered by the employer. Among the arguments raised, first the employee contends that G. L. c. 152, § 35D(3), and/or § 35D(5),¹ do not apply, as the light duty job offered was not suitable. Next, the employee argues that the judge erred in not basing his finding of the employee's ability to perform light duty work exclusively on the record medical evidence that he could perform that particular job. On our review of the evidentiary record, the decision is affirmed.

 

 

¹ General Laws c. 152, § 35D, as amended by St. 1991, c. 398, § 65, provides in pertinent part:

For the purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following:

. . . .

(3) The earnings the employee is capable of earning in a particular suitable job, provided, however, that such job has been made available to the employee and he is capable of performing it. The employee's receipt of a written report that a specific suitable job is available to him together with a written report from the treating physician that the employee is capable of performing such job shall be prima facie evidence of an earnings capability under this clause.

. . . .

(5) Implementation of this section is subject to the procedures contained in section eight. For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee's injury, so long as such job bears a reasonable relationship to the employee's work experience, education, or training, either before or after the employee's injury. The fact that an employee has enrolled or is participating in a vocational rehabilitation program paid for by the insurer or the department shall not be used to support the contention that the employee's compensation rate should be decreased in any proceeding under this chapter.