Decision  Jean Drumm v. Viale Florist (II)

Date:	08/02/2005
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 006381-91
Location:	Boston
Referenced Sources:	Jean Drumm v. Viale Florist (I)

• Employee: Jean Drumm
• Employer: Viale Florist
• Insurer: Florists Mutual Insurance Co.

CARROLL, J. The employee appeals from a decision in which an administrative judge denied and dismissed her claim for double benefits, pursuant to G. L. c. 152, § 28, based on a February 14, 1991 fall through an open trap door ² in the floor at work. ³ The employee raises two related issues on appeal. ⁴ We conclude that recommittal is appropriate due to the judge's erroneous refusal to admit and discuss the application and import of the proffered state and federal safety regulations.

² The judge found: "I credit the employee's testimony that the safety cones were not in place on February 14, 1991, [the date of injury], nor were there any safeguards in place around the cellar entrance when the door was open on that date." (Dec. 5).

³ There is no dispute the employee fell through the trap door at work, and that she sustained serious injuries to her shoulder, knee and back. (Dec. 4).

⁴ The issues presented by the employee's brief are "[w]hether the administrative judge's denial of the employee's Section 28 claim was contrary to law," and "[w]hether the . . . judge's refusal to admit Massachusetts and federal safety regulations into evidence was arbitrary and capricious and contrary to law." (Employee br. 1).