Decision  Karen L. Wunschel v. Charter Communications

Date:	12/22/2015
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 036235-09
Location:	Boston

• Employee: Karen L. Wunschel
• Employer: Charter Communications
• Insurer: Ins. Co. State of Pennsylvania

FABRICANT, J. The insurer appeals from a decision¹ awarding $79,950.15 pursuant to § 36, and home health care benefits pursuant to §§ 13 and 30. The insurer argues that the employee’s failure to comply with the evidentiary standard, required by 452 Code Mass. Regs. § 1.07(2)(i), disqualifies consideration of the employee’s § 36 claim ab initio.² The insurer further argues that the health care benefits awarded pursuant to §§ 13 and 30 are not qualified compensable medical expenses under the standard established by Klapac’s Case, 355 Mass 46 (1968).³ While we affirm the decision regarding the award of § 36 benefits, due to procedural irregularities we are compelled to vacate the award of §§ 13 and 30 benefits and order a recommittal for a hearing de novo on that issue only.

¹ The decision was filed on April 2, 2015. Subsequently, a decision labeled "CORRECTED Decision" was filed on April 17, 2015.

² 452 Code Mass. Regs. § 1.07(2)(i) provides, in relevant part:

All claims for functional loss under the provisions of M.G.L. c. 152, § 36 or § 36A shall include a physician’s report which indicates that a maximum medical improvement has been reached and which contains an opinion as to the percent of permanent functional loss according to the American Medical Association’s guide to physical impairment.

³ In Klapac, the court found the term "medical services," as used in § 30 in this context, refers to "the services of a nurse or trained attendant rendered under the direction and control of a physician and has been restricted to services so rendered." We have applied this definition to the current language found in § 30 referencing "health care services." DeOliveira v. Calumet Constr. Corp., 29 Mass. Workers’ Comp. Rep. __ (October 27, 2015); see also Santana v. Belden Corp., 5 Mass. Workers’