Decision  Mary Jane Doonan (deceased) v. Pointe Group Health Care

Date:	12/15/2014
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 024722-04
Location:	Boston

• Employee: Mary Jane Doonan (deceased)
• Employer: Pointe Group Health Care
• Insurer: AIM Mutual Insurance Company

CALLIOTTE, J. Both parties appeal from the fourth hearing decision¹ in this case, in which an administrative judge awarded the employee five years of § 35 partial incapacity benefits between 2004 and 2009, in accordance with her finding that the employee² was capable of working thirty-two hours per week in a light or sedentary minimum wage job. The employee argues the judge abused her discretion in failing to award her attorney an enhanced fee. We disagree and summarily affirm the decision on that issue. Watson v. Rodman Ford Sales, 27 Mass. Workers’ Comp. Rep. 23, 25 (2013). The insurer argues that the judge: 1) made credibility findings which are arbitrary and capricious; 2) exceeded the scope of two remand decisions issued by the Appeals Court,³ by impermissibly reconsidering issues which had previously been decided; and 3) erred by finding the employee could work only thirty-two hours per week. We affirm, discussing the first two issues and summarily affirming as to the third.⁴

¹ The first hearing decision of January 31, 2007, is hereinafter referred to as Dec. I; the second hearing decision of April 30, 2010, as Dec. II; the third hearing decision of October 29, 2010, as Dec. III; and the fourth hearing decision of August 23, 2013, as Dec. IV.

² The employee died on April 9, 2012, prior to the last hearing, which was held on February 1, 2013. (Dec. IV, 3.) Her son, Sean McCurley, testified at that hearing that he is the executor of her estate. Id. Subsequent to the hearing, the insurer agreed to pay Mr. McCurley’s § 39 claim for legal services for appointment as legal representative. See Rizzo v. M.B.T.A., 16 Mass. Workers’ Comp. Rep. 160, 161 n.3 (2002)(reviewing board may take judicial notice of board file). In Decision IV, the judge listed the claimant as "Estate of Mary Jane Doonan," although there had been no formal substitution of the estate or Mr. McCurley as the executor of the estate, as the proper party. Under these circumstances, we think the award may be paid to the estate. Cf. DaSilva v. Palladino Landscaping, 25 Mass. Workers’ Comp. Rep. 259, 260 and n.2 (2011).

³ Doonan’s Case, 81 Mass. App. Ct. 1121 (March 14, 2012)(Memorandum and Order Pursuant to Rule 1:28)("Doonan I"); and Doonan’s Case, 82 Mass. App. Ct. 1112 (September 5, 2012)(Memorandum and Order Pursuant to Rule 1:28)("Doonan II").

⁴ Regarding the third issue, the court in Doonan I stated the judge had appropriately found the employee had the capacity to work thirty-two hours a week, "based on the employee’s past ability to work, the nature of her injury, and the limitations upon her. . . ."