Decision  Dianne L. Fritz v. Living Assistance Corp.

Date:	10/10/2008
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 040302-04
Location:	Boston

• Employee: Dianne L. Fritz
• Employer: Living Assistance Corp.
• Insurer: A.I.M. Mutual Insurance Co.

 

COSTIGAN, J. The employee and the insurer cross-appeal from a decision in which the administrative judge awarded the employee a closed period of § 34 total incapacity benefits, followed by ongoing § 35 partial incapacity benefits. The employee challenges the judge's assignment of an earning capacity as of April 6, 2006. We summarily affirm the decision in this regard.1 The insurer raises several arguments with respect to the judge's handling of the medical evidence. For the reasons that follow, we recommit the case for further proceedings and a decision anew.

¹In her "Appellant's Brief on the Cross-Appeal," the employee also argued that the insurer had not preserved the issue of liability, and the judge erred in allowing the insurer to raise liability at hearing. The judge's decision reflects that both parties appealed his 10A conference order, and the insurer raised the issue of liability at hearing. (Dec. 2.) The "Insurer's Hearing Memorandum" likewise reflects that it raised liability as an issue to be addressed at hearing. (Ins. Ex. 1.) Accordingly, we likewise reject this aspect of the employee's argument on appeal.