Decision  Don Q. Arrington v. Tewksbury Home Painting

Date:	11/01/2000
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 049809-96
Location:	Boston

• Employee: Don Q. Arrington
• Employer: Tewksbury Home Painting
• Insurer: Workers’ Compensation Trust Fund

MAZE-ROTHSTEIN, J. The uninsured employer and the Workers’ Compensation Trust Fund appeal a decision that awarded the employee compensation benefits for an industrial injury to his lower back and left ankle. Pursuant to G.L. c. 152, § 65(2)(e) and (13) and 452 Code Mass. Regs. §1.20(1), the uninsured employer was joined as a party to the proceeding at the §10A conference on May 5, 1997.¹ (Dec. 2.) Both appellants argue on appeal that the judge erred in his calculation of the average weekly wage. (Trust Fund Br. 3-4; Employer Br. 5-6.) The uninsured employer also argues that it was error to deny its motion to join a §27 claim of serious and wilful employee misconduct on the first day of the hearing, December 9, 1998.² Because the ruling on the §27 claim was not an abuse of discretion, we affirm that aspect of the decision. As for the average weekly wage issue, we recommit the case for further findings. See G.L. c. 152, §11C.

¹ General Laws c. 152, § 65(2)(e), provides, in pertinent part:

There is hereby established a trust fund in the state treasury, known as the Workers’ Compensation Trust Fund, the proceeds of which shall be used to pay or reimburse the following compensation: . . . (e) payment of benefits resulting from approved claims against employers subject to the personal jurisdiction of the commonwealth who are uninsured in violation of this chapter . . . .

Amended by St. 1991, c. 398, § 85.

General Laws c. 152, §65(13), provides, in pertinent part:

Claims against the Workers’ Compensation Trust Fund for payment of compensation pursuant to clause (e) of subsection (2) shall be handled in accordance with section ten; provided, however, that no penalty pursuant to section seven shall be levied against the fund . . . . No voluntary payment for any period of time shall alone be held to foreclose the fund from defending any issue involved in a claim for compensation. On a motion of a claimant or representative of the fund, an administrative judge may join the uninsured employer as a party.

Amended by St. 1991, c.398, § 89.

452 Code Mass. Regs. § 1.20(1), provides:

(1) An administrative judge before whom a proceeding is pending may join, or any party to such proceeding may request the administrative judge to join, as a party, on written notice and a right to be heard, an insurer, employer, or other person who may be liable for payment of compensation to the claimant.

² General Laws c. 152, §27, provides, in pertinent part, that "[i]f the employee is injured by reason of his serious and wilful misconduct, he shall not receive compensation . . . ."

Amended by St. 1935, c. 331.