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Decision Matthew Ormonde v. Choice One Communications

Date: 06/08/2010
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 042040-02
Location: Boston
  • Employee: Matthew Ormonde
  • Employer: Choice One Communications
  • Insurer: Federal Insurance Company

COSTIGAN, J. The insurer’s appeal challenges the administrative judge’s decision on three fronts: 1) it is not supported by adequate subsidiary findings of fact; 2) the award of § 34 total incapacity benefits is not supported by the medical evidence; and 3) the award of ongoing § 35 partial incapacity benefits is not supported by the medical evidence. We are satisfied the judge’s subsidiary findings adequately support his denial of the insurer’s § 14 fraud complaint against the employee, and we affirm his decision on that issue. We agree, however, that other of the judge’s subsidiary findings do not allow us to "determine with reasonable certainty whether correct rules of law have been applied to facts that could properly be found." Ladue v. C & S Wholesale Foods, 21 Mass. Workers’ Comp. Rep. 233, 239 (2007), quoting Praetz v. Factory Mut. Eng’g & Research, 7 Mass. Workers’ Comp. Rep. 45, 47 (1993). We also agree the judge erred in finding total incapacity based solely on the impartial medical report. Further, we agree the judge erred in adopting the same expert medical opinion to assign different earning capacities. Therefore, we recommit the case for the judge to reconsider the medical evidence and make additional subsidiary findings.

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