| Date: | 06/09/2016 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 032052-13 |
| Location: | Boston |
- Petitioner: Jeffrey Spencer
- Employer: JG MacLellan Concrete Co.
- Insurer: Travelers Insurance Co.
KOZIOL, J. The employee appeals from a decision ordering payment of § 34 benefits from the date of injury, November 25, 2013, through May 18, 2015, and § 35 partial incapacity benefits from May 19, 2015, and continuing at a rate of $206.22 per week based on an average weekly wage of $743.70, and a $400 per week earning capacity. The employee argues the judge erred by allowing additional medical evidence to be admitted and assigning an earning capacity that was unsupported by the evidence. We modify the § 35 award and order payment based on the minimum wage in the Commonwealth on May 19, 2015, the date the judge found the earning capacity commenced, through December 31, 2015. Thereafter, the insurer shall pay the employee § 35 benefits at the rate ordered by the judge.