Decision  Michael T. Baker v. Commonwealth of Massachusetts

Date:	07/20/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 017079-03
Location:	Boston

• Employee: Michael T. Baker
• Employer: Commonwealth of Massachusetts
• Self Insurer: Commonwealth of Massachusetts

COSTIGAN, J. The self-insurer appeals from a decision in which the administrative judge found that the employee had sustained a compensable emotional injury under § 1(7A),¹ and awarded him § 34 total incapacity benefits from May 21, 2003 to statutory exhaustion, and § 35 maximum partial incapacity benefits without prejudice thereafter.² For the reasons that follow, we affirm the decision.

¹ General Laws c. 152, § 1(7A), provides, in pertinent part:

Personal injuries shall include mental or emotional disabilities only where the predominant contributing cause of such disability is an event or series of events occurring within any employment. . . . No mental or emotional disability arising principally out of a bona fide, personnel action including a transfer, promotion, demotion, or termination except such action which is the intentional infliction of emotional harm shall be deemed to be a personal injury within the meaning of this chapter.

The fifth sentence of G. L. c. 152, § 29, is identical to the second sentence quoted above.

² Although the 156-week § 34 maximum entitlement would have been reached in mid-2006, no anticipatory claim for § 34A permanent and total incapacity benefits was filed by the employee at or prior to the December 2005 hearing, or prior to the extended closing of the record in December 2008. (See Dec. 2 for the procedural history of the case.) With no § 34A claim before her, but based on her finding the employee continued to be totally incapacitated, the judge opted to award him maximum § 35 benefits without prejudice, reserving to him the right to file a claim for § 34A benefits from and after the date of § 34 exhaustion. (Dec. 9.)