Decision  Michael J. Tuohey, III v. MBTA

Date:	12/06/2017
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 045588-04, 036017-12
Location:	Boston

• Employee: Michael J. Tuohey, III
• Employer: MBTA
• Self Insurer: MBTA

KOZIOL, J. The employee appeals from a December 15, 2016, decision denying and dismissing his claims seeking: 1) § 35 partial incapacity benefits from May 6, 2008, through October 3, 2008, based on a July 8, 2004, work-related injury; and, 2) § 34 temporary total incapacity benefits from February 12, 2014, through March 30, 2014, based on a September 6, 2012, work-related injury. (Dec. III, 10.)¹ The judge denied the § 35 claim, concluding it was filed three years beyond the four-year limitations period set forth in § 41, and finding that the self-insurer was prejudiced by the delay in filing. (Dec. III, 9.) The judge also denied the § 34 claim, determining it was barred by § 10A(3), because the employee did not appeal from an April 8, 2014, conference order allowing joinder of a claim for § 34 benefits for that timeframe. (Dec. III, 9-10.) Because we conclude the judge erred in both respects, we vacate the decision and recommit the matter for a hearing de novo. In order to address the issues on appeal, we set forth in detail the complicated procedural history of these claims.

¹ Although this is the third hearing decision regarding the July 8, 2004, injury, it is the first hearing decision regarding the September 6, 2012, injury. Because both claims concern injuries to the employee’s left shoulder and were joined for hearing, hereinafter we refer to the December 30, 2013, hearing decision pertaining to the July 8, 2004, date of injury as "Dec. I;" the March 28, 2014, hearing decision concerning the employee’s motion for an enhanced attorney’s fee for work performed in connection with the hearing culminating in Dec. I, as "Dec. II;" and, the December 15, 2016, hearing decision at issue in this appeal, concerning both the July 8, 2004, and the September 6, 2012, injuries, as "Dec. III." We observe that the judge should not have issued a separate hearing decision, regarding the employee’s motion for an enhanced attorney’s fee. (Dec. II.) This issue should have been resolved at the same time as the employee’s pending underlying claim. Richards v. US Bancorp, 28 Mass. Workers’ Comp. Rep. 115, 124 (2014)(when proceeding does not resolve all of the issues presented by the claim, judge should "inform the parties that one full and final decision, incorporating his finding and rulings on all of the issues necessary to dispose of the case . . . will issue after the remainder of the case is completed")(emphasis in original).