Decision  Nichole LePage v. Department of Environmental Management

Date:	05/23/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 024061-02
Location:	Boston

• Employee: Nichole LePage
• Insurer: Department of Environmental Management
• Self Insurer: Commonwealth of Massachusetts

KOZIOL, J. The self-insurer appeals from a decision awarding the employee various periods of § 35 partial incapacity benefits, followed by § 34A permanent and total incapacity benefits from May 28, 2009, and continuing, as well as three separate upward adjustments to the employee’s average weekly wage pursuant to § 51,¹ on May 21, 2005, September 6, 2005, and May 28, 2009.² Although the self-insurer does not dispute that § 51 applies to this case, (Self-ins. br. 8), it argues the judge erred in awarding each of the three identified § 51 increases.³ We affirm.⁴

¹ General Laws c. 152, § 51, provides:

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee’s benefits under this section shall not be limited to the circumstances of the employee’s particular employer or industry at the time of injury.

² There are three volumes of transcripts for the two day hearing. Hereinafter, we reference the transcripts as follows: February 2, 2010, stenographer Karen DeGregorio, as Tr. I; February 2, 2010, stenographer Maryellen Moulaison, as Tr. II; and February 22, 2010 as Tr. III.

³ The self-insurer also argues the judge erred in failing to find the matter medically complex pursuant to § 11A(2), because the impartial medical examiner testified that it was. (Ex. 3, at 6, 38-39.) We summarily affirm the decision on this issue. See LaFountain’s Case, 80 Mass. App. Ct. 1102 (2011)(Memorandum and Order Pursuant to Rule 1:28).

⁴ Because the Supreme Judicial Court granted further appellate review of the decision in Wadsworth’s Case, 78 Mass. App. Ct. 101 (2010), further rev. granted, 459 Mass. 1101 (2011), the parties were notified at oral argument, that the reviewing board would accept supplemental briefs filed within thirty days of the court’s decision in Wadsworth. See Wadsworth’s Case, 461 Mass. 675 (2012). No briefs were submitted.