Date: | 01/10/2011 |
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Organization: | Department of Industrial Accidents |
Docket Number: | DIA Board No. 028712-06 |
Location: | Boston |
- Employee: Paul D. Regan
- Employer: Massachusetts Turnpike Authority
- Self Insurer: Massachusetts Turnpike Authority
KOZIOL, J. The employee appeals from the judge's decision allowing the self-insurer's complaint to modify his weekly incapacity benefits by ordering discontinuance of § 34 total incapacity benefits, and payment of ongoing § 35 partial incapacity benefits as of April 28, 2008.1 On appeal, the parties agree that the judge's incapacity analysis was flawed as a result of an erroneous finding of material fact regarding the employee's age: the judge found the employee was forty-nine years old at the time of the hearing rather than his actual age of fifty-nine 2 The parties also agree that under the circumstances, the error is substantial and requires recommittal for further findings of fact and reconsideration of the incapacity analysis pursuant to Frennier's Case, 318 Mass. 635 (1945). Greene v. Ethyl Prods., 23 Mass Workers' Comp Rep. 95, 97 (2009)(recommittal required where "eight-year age difference - particularly in the latter portion of an individual's working life" was not insubstantial and may affected judge's assessment of employability.