Decision  Jeffrey Hill v. Dunhill Staffing Systems, Inc.

Date:	12/12/2002
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 035728-98
Location:	Boston
Referenced Sources:	Jeffrey Hill v. Dunhill Staffing Systms, Inc.

• Employee: Jeffrey Hill
• Employer: Dunhill Staffing Systems, Inc.
• Insurer: Fireman’s Fund Insurance Co.

COSTIGAN, J. The employee appeals on two grounds from the administrative judge’s decision on recommittal from the reviewing board. See Hill v. Dunhill Staffing Sys., Inc., 14 Mass. Workers’ Comp. Rep. 350 (2000).¹ First, he claims that the judge erred in assigning him a weekly earning capacity of $250.00 which, when applied to the corrected average weekly wage of $266.99 found by the judge, resulted in a § 35 partial incapacity rate of $10.19. As the employee did not appeal the judge’s original decision which assigned that same earning capacity, and he did not move to join the issue of earning capacity at the hearing on recommittal, he cannot properly raise that issue now. Jones v. Wayland, 374 Mass. 249, 252-253 n.3 (1978); Dudley v. Yellow Freight, 15 Mass. Workers’ Comp. Rep. 205, 207 (2001). We therefore affirm the judge’s decision as to the employee’s earning capacity and the award of § 35 benefits.

¹ We refer to the judge’s original hearing decision, filed on December 21, 1999, as "Dec. I" and his decision on recommittal, filed on December 6, 2001, as "Dec. II." In his first decision, the administrative judge awarded the employee weekly temporary total and temporary partial incapacity benefits, based on a $585.00 average weekly wage to which both parties had stipulated. (Dec. I, 4; Tr. 3.) Only the insurer appealed that decision, asserting that the stipulated average weekly wage was incorrect. The reviewing board recommitted the case to the administrative judge to reconsider his denial of the insurer’s post-decision motion to vacate the average weekly wage stipulation, and also to consider whether to join the employee’s post-decision claim for § 8 penalties, based on the insurer’s alleged failure to pay benefits in accordance with the 1999 hearing decision. Hill, supra at 352.