| Date: | 10/13/2009 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 038493-00 |
| Location: | Boston |
- Employee: Kenneth Whalen
- Employer: Ryder Integrated Logistics
- Insurer: Ryder Systems, Inc.
FABRICANT, J. The self-insurer appeals from a decision awarding the employee § 34A permanent and total incapacity benefits as of the date his § 34 benefits were exhausted. The self-insurer argues the administrative judge improperly shifted the burden of proving the extent of incapacity during the three year period between § 34 benefit exhaustion and the date of the § 11A impartial medical examination, (the so-called "gap" period), and that no medical evidence established the employee's entitlement to § 34A benefits during the gap period. We agree with the self-insurer's arguments, reverse the decision in part, vacate the award of § 34A benefits during the gap period only, and recommit the case for further findings.