Decision

Decision  Jayson Kulisich v. Greater Lowell Family YMCA

Date: 06/24/2002
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 030060-96
Location: Boston
Referenced Sources: Jayson Kulisich v. Greater Lowell Family YMCA
  • Employee: Jayson Kulisich
  • Employer: Greater Lowell Family YMCA
  • Insurer: Eastern Casualty Insurance Company

CARROLL, J. The reviewing board has previously addressed this case. See Kulisich v. Greater Lowell Family YMCA, 14 Mass. Workers’ Comp. Rep. 137 (2000). In Kulisich, we recommitted the decision for findings as to whether the employee was injured in the course of his employment as that phrase from G. L. c. 152, § 26, has been interpreted in the context of horseplay injuries.1 Kulisich, supra. A second decision issued. (Hereinafter, "Dec. II".) The employee appeals that decision claiming error in the judge’s failure to rule on the employee’s motion for allowance of additional testimony. We agree with the employee and recommit the case a second time for a ruling on the motion and further findings should the motion be allowed.

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1 The judge’s first decision stated that the issue presented was whether the employee engaged in serious and willful misconduct on the job within the meaning of § 27, which led to his disabling injury. (Dec. I, 551.) General Laws c. 152, § 27, as amended by St.1935, c. 331, reads in pertinent part:

"If the employee is injured by reason of his serious and willful misconduct, he shall not receive compensation . . . ."

Section 27 was never raised by the insurer. The case was recommitted for the judge to address the correct issue raised by the insurer, § 26. General Laws c. 152, § 26, as amended by St. 1991, c. 398, § 40, reads in pertinent part:

"If an employee . . . receives a personal injury arising out of and in the course of his employment . . . he shall be paid compensation by the insurer or self-insurer . . . ."

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