Decision  Clifford LaPointe v. Souliere and Zepka Construction Co., Inc.

Date:	05/20/2005
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 026747-99
Location:	Boston

• Employee: Clifford LaPointe
• Employer: Souliere and Zepka Construction Co., Inc.
• Insurer: Credit General Insurance Co.

HORAN, J. This sixty-eight year old employee appeals the decision of an administrative judge denying his claim for permanent and total incapacity benefits or, in the alternative, partial incapacity benefits. The judge found the employee capable of performing many types of non-trifling work, and thus denied his § 34A claim.¹ (Dec. 3.) We summarily affirm that finding. The judge based his denial of § 35 benefits by applying § 35E.² Id. The judge's treatment of § 35E is contrary to law. Accordingly, we reverse that part of the decision and recommit the case for further factual findings consistent with this opinion.

 

¹ The employee, a carpenter, lost most of the sight in his left eye when a nail struck it at work on July 19, 1999. (Dec. 2.)

² General Laws c. 152, § 35E, provides, in pertinent part:

Any employee who is at least sixty-five years of age and has been out of the labor force for a period of at least two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under sections thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market. The presumption of non-entitlement to benefits created by this section shall not be overcome by the employee's uncorroborated testimony, or that corroborated only by any of his family members, that but for the injury, such employee would have remained in the labor market.

St. 1991, c. 398, § 66