Decision

Decision  Edward Blais v. Gallo Construction Co., Inc.

Date: 10/11/2011
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 049216-03
Location: Boston
  • Employee: Edward Blais
  • Employer: Gallo Construction Co., Inc.
  • Insurer: Granite State Insurance Company

COSTIGAN, J. The employee appeals so much of the administrative judge’s decision as denied and dismissed his claim for weekly incapacity and medical benefits for severe injuries sustained when a former co-worker assaulted him with a baseball bat. The employee argues the administrative judge erred in finding the assault did not occur on the employer’s premises, as he alleged, and that it did not arise out of his employment.1 The insurer appeals the judge’s denial of its recoupment complaint,2 and further argues the judge failed to address its claim for § 14 penalties against the employee. We affirm the decision.

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1  We note the only ground asserted by the employee in his Form 112 appeal to the reviewing board was that the “Trial Judge erred in not awarding attorney fees to employee’s trial counsel upon successful defense of Section 14 claim brought by insurer or in not making specific rulings relative to insurer’s Section 14 claims.” Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3 (2002)(judicial notice of contents of board file proper). In his brief, the employee expands his appeal, without objection by the insurer, to include the argument that his injuries are work-related, and therefore compensable, even if the assault occurred on property adjacent to the employer’s worksite. (Employee br. 4-7.) Countering one of the insurer’s grounds for appeal, the employee also contends the judge’s implicit denial of the insurer’s claim for § 14 penalties was proper, but he does not argue that he is entitled to an attorney’s fee for successfully defending against that claim. See Richards’s Case, 62 Mass. App. Ct. 701 (2004).

2  Pursuant to a § 10A conference order filed on September 15, 2005, the insurer had been paying the employee weekly § 34 total incapacity benefits of $300 and medical benefits from September 7, 2005 (the date of the conference) and continuing. Rizzo, supra.

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