Decision Judith Fallon v. Department of Revenue

Date: 10/21/2005
Organization: Department of Industrial Accidents
Docket Number: DIA Board Nos. 052738-93, 046205-96
Location: Boston
  • Employee: Judith Fallon
  • Insurer: Department of Revenue
  • Self Insurer: Commonwealth of Massachusetts

COSTIGAN, J. The self-insurer appeals from a decision in which an administrative judge awarded, inter alia, § 35 partial incapacity benefits not claimed by the employee.1  "The scope of the administrative judge's authority at a § 11 hearing is limited to deciding those issues in controversy." Hall v. Boston Park Plaza Hotel, 12 Mass. Workers' Comp. Rep. 188, 190 (1998). See also Goodsell v. Nashoba Painters, Inc., 16 Mass. Workers' Comp. Rep. 104 (2002); Lemieux v. FLEXcon Co., 15 Mass. Workers' Comp. Rep. 310, 311 (2001). "Where there is no claim, and therefore, no dispute, . . . the judge strayed from the parameters of the case and erred [by] making findings on issues not properly before [him]." Casey v. Town of Brookline, 17 Mass. Workers' Comp. Rep. 302, 309 (2003), citing Medley v. E. F. Hausermann Co., 14 Mass. Workers' Comp. Rep. 327, 330 (2000), quoting Gebeyan v. Cabot's Ice Cream, 8 Mass. Workers' Comp. Rep. 101, 102-103 (1994).


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1The parties stipulated that the employee sustained work-related back injuries in 1993 and 1996. (Dec. 691.) Based on the earlier date of injury, the employee claimed § 34 total incapacity benefits from November 20, 1996 to the date of statutory maximum entitlement. In the alternative, based on the second date of injury, she claimed § 34 benefits from August 12, 1997 through August 8, 2000. (Dec. 690.) Thus, the latest date on which the employee claimed any incapacity was August 8, 2000. It is well-established that a judge, faced with a claim for § 34 incapacity benefits only, may award "lesser included" § 35 benefits for the same period, Tredo v. City of Springfield, 19 Mass. Workers' Comp. Rep. ___ (May 20, 2005), citing Devaney v. Webster Eng'g, 14 Mass. Workers' Comp. Rep. 359, 361 (2000) and Fragale v. MCF Indus., 9 Mass. Workers' Comp. Rep. 168, 171-172 (1995). However, he may not award benefits for a period in which no incapacity is alleged -- in this case, from and after August 9, 2000.