Decision  Kevin MacDonnell v. City of Worcester Parks and Recreation Dept.

Date:	08/30/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 042612-02
Location:	Boston

• Employee: Kevin MacDonnell
• Employer: City of Worcester Parks and Recreation Dept.
• Self Insurer: City of Worcester

HORAN, J. Both parties appeal from a decision awarding the employee § 34A benefits, but authorizing the self-insurer to recoup benefits paid during the employee’s ninety day stay in a rehabilitation center as part of his sentence for a federal conviction. We summarily affirm the decision respecting all issues raised by the parties but one. Relying on G. L. c. 152, § 8(2)(j),¹ at hearing the self-insurer argued the employee had forfeited his right to weekly workers’ compensation benefits while he was an inpatient at the rehabilitation center. The judge agreed, and permitted the self-insurer to recoup those benefit payments. (Dec. 12.) We agree with the employee that his commitment to the rehabilitation center was not an incarceration. Accordingly, we reverse that aspect of the decision and vacate part of the judge’s recoupment order.²

 

¹  General Laws c. 152, § 8(2)(j), provides:

An insurer paying weekly compensation benefits shall not modify or discontinue such payments except in the following situations:

                                                     . . .

(j) the employee has been incarcerated pursuant to conviction for a felony or misdemeanor and has thereby forfeited any right to compensation during such period. . . .

²  The employee does not challenge the judge’s decision to deny his right to receive workers’ compensation benefits from January 28, 2008 through April 18, 2008, when the employee was incarcerated at the Worcester County House of Correction. (Dec. 8-9.)