Decision  Denise M. Wiinikainen v. Epoch Senior Living, Inc.

Date:	02/14/2018
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 021709-14
Location:	Boston

• Employee: Denise M. Wiinikainen
• Employer: Epoch Senior Living, Inc.
• Insurer: A.I.M. Mutual Ins. Co.

KOZIOL, J.  The insurer appeals from a decision denying “the employee’s claim for § 34 benefits,”¹ and ordering the insurer to pay for “reasonable and related medical expenses pursuant to Section [sic] 13 and 30 for treatment, including surgery and aftercare as requested by her treating physician.”  (Dec. 12-13.)  The insurer alleges the judge erred by ruling that the employee met her burden of proof under § 1(7A), by making inconsistent findings and an arbitrary finding regarding the medical evidence, by ordering the surgery, and by failing to address the insurer’s underlying complaint to discontinue weekly benefits.  The insurer seeks reversal of the order for surgery and recommittal for further findings of fact addressing its complaint.

¹  The judge initially acknowledged that the employee sought “[s]ection 34, temporary total incapacity benefits from August 29, 2014 to date and continuing,” (Dec. 2), yet in her conclusion regarding the extent of the employee’s incapacity, the judge stated, “[t]he Employee’s claim for Permanent and Total disability [sic] is denied.”  (Dec. 11.)  She further ordered, “the Employee’s claim for Section 34, permanent and total disability [sic] is denied.”  (Dec. 12.)  The insurer argues that its underlying complaint for discontinuance was the issue at hearing, and that, in response, the employee sought temporary total incapacity benefits under § 34, not § 34A permanent and total incapacity benefits.  (Ins. br. 9.)  We agree that the decision and order require correction on recommittal because the employee did not seek § 34A, permanent and total incapacity benefits.