| Date: | 09/21/2001 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 51641-96 |
| Location: | Boston |
- Employee: Eric R. Mansfield
- Employer: Emery Worldwide Freight Co.
- Insurer: Insurance Company State of Pennsylvania
MCCARTHY, J. An administrative judge’s decision denying permanent and total incapacity benefits, and awarding §35 partial benefits as of the exhaustion of §34 temporary total benefits , is before us on cross-appeals. We summarily affirm the denial of the employee’s claim for §34A permanent and total incapacity benefits . We address the sole contention – advanced by both parties from different perspectives – that the judge’s assignment of an earning capacity as of the date of exhaustion of §34 benefits was erroneous, because there was no evidence connecting that date to an actual change in the employee’s incapacity status. See Parker v. Shaw’s Supermarkets, Inc., 12 Mass. Workers’ Comp. Rep. 6 (1998). As to the employee, we consider that the judge’s award of partial incapacity benefits after receiving the maximum §34 entitlement to be consistent with the equitable principles set out in Marino v. M.B.T.A., 7 Mass. Workers’ Comp. Rep. 140, 141-142 (1993)("Where, as here, §34 benefits have been exhausted, it would be contrary to the humanitarian purpose . . . and lead to a result at odds with the purpose of the statute [citations omitted], to deny benefits to a more seriously injured worker while granting benefits to those less seriously injured"). We therefore do not see that the employee has any real standing to complain about the date of benefit reduction. See Lamb v. Louis M. Gerson Co., 11 Mass. Workers’ Comp. Rep. 584, 588 (1997)(party not aggrieved by an error has no standing to appeal that point). The insurer, on the other hand, articulates a sufficient reason for recommitting the case for a de novo hearing1 on the extent of incapacity in the period prior to exhaustion of §34 benefits.