Decision  Jacqueline Turner v. Stanley & Sons, Inc.

Date:	10/05/2010
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 034796-05
Location:	Boston

• Employee: Jacqueline Turner
• Employer: Stanley & Sons, Inc.
• Insurer: National Union Fire Insurance Co.

COSTIGAN, J. The parties cross-appeal from an administrative judge's decision awarding ongoing § 35 partial incapacity benefits for the employee's right major hand injury, but denying her claim of a right shoulder injury.¹  The employee challenges the judge's denial of her alleged right shoulder injury claim and her claim for increases to her pre-injury average weekly wage pursuant to § 51. The insurer contends the judge's finding of any ongoing incapacity was erroneous. For the reasons that follow, we affirm the decision.

¹ At hearing, the employee sought weekly compensation and medical benefits for various periods of total and partial incapacity she claimed were causally related to both her right hand and alleged right shoulder injuries. Based on her status as an apprentice carpenter when she was injured, the employee, age forty-four at the time, also sought periodic adjustments to her average weekly wage pursuant to the provisions of § 51:

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee's benefits under this section shall not be limited to the circumstances of the employee's particular employer or industry at the time of injury.

The insurer accepted liability for the right hand injury but denied the applicability of § 51 to the employee's claim, and contested liability as to the alleged right shoulder injury, also raising late notice as an affirmative defense. (Dec. 5-6.)