Decision  John Martin v. Cox Engineering Co., Inc.

Date:	02/09/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 023558-05
Location:	Boston

• Employee: John Martin
• Employer: Cox Engineering Co., Inc.
• Insurer: United States Fire Insurance Co.

FABRICANT, J. The employee appeals from a decision in which the administrative judge awarded weekly incapacity benefits pursuant to §§ 34 and 35, but denied the employee's claim for benefit enhancement pursuant to § 51.¹  The employee also challenges the judge's retroactive modification of benefits. We agree that this retroactive modification violates Cubellis v. Mozzarella House, Inc., 9 Mass. Workers' Comp. Rep. 354 (1995)(order of discontinuance may go back no further than filing date of complaint). Accordingly we reverse the decision in part. We also agree that the judge's analysis under § 51 was too narrowly focused on the employee's age. We therefore recommit the case for further findings. 

¹  General Laws c. 152, § 51, provides, in pertinent part:

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 market, his wage would be expected to increase, that fact may be considered in determining his weekly wage.