Decision  Morris E. Davis v. P. A. Frisco, Inc.

Date:	11/18/2004
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 41439-00
Location:	Boston

• Employee: Morris E. Davis
• Employer: P. A. Frisco, Inc.
• Insurer: National Union Fire Insurance Co.

McCARTHY, J. The parties cross-appeal a decision in which an administrative judge, in an amendment, dated April 22, 2004, to his decision of February 26, 2004, awarded the employee a closed period of partial incapacity benefits at the maximum rate under § 35. The insurer challenges the authority of the judge to reopen the case and issue such an amendment, which extended the termination date of the original award of § 35 benefits from February 6, 2002, the date of the impartial examination, to February 26, 2004, the filing date of the decision.¹ We agree that such action was contrary to law. In so concluding, we hereby overrule our decision in Howard v. Beacon Constr., 11 Mass. Workers’ Comp. Rep. 290 (1997). The employee challenges the decision(s), arguing that the judge performed an insufficient incapacity analysis. We agree with that argument in part. Therefore, we recommit the case, which must result in a de novo hearing, as the judge no longer serves with the department.

¹ In its brief on appeal, the insurer argues that the "amended decision" should be disregarded as being outside the powers of the administrative judge (Insurer brief at 12) and the decision dated February 26, 2004 "be upheld." (Insurer brief at 15).