Decision  Richard DeFeo v. Mobil Oil Corporation

Date:	05/12/2005
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 023257-88, 034089-92
Location:	Boston

• Employee: Richard DeFeo
• Employer: Mobil oil Corporation
• Insurer: Insurance Co. of the State of Pennsylvania

COSTIGAN, J. The employee appeals from the fourth hearing decision filed in his case,¹ in which an administrative judge denied his claim for § 34A permanent and total incapacity benefits for bilateral shoulder injuries, or, in the alternative, § 35 temporary partial incapacity benefits for his 1988 left shoulder injury. We summarily affirm the judge's denial of the § 34A claim, as well as his findings that the employee's alleged neck, low back and left knee complaints, and the traumatic amputation of three fingers sustained in a power saw accident at home, were unrelated to either of his compensable shoulder injuries. However, we recommit the case for further subsidiary findings of fact as to the employee's left shoulder-related partial incapacity, and what, if any, weekly benefits he is entitled to receive as a result of that injury.

 

¹ The first three hearing decisions were filed by a different administrative judge, and were admitted into evidence at the 2003 hearing. (Dec. 4.) Because certain findings of fact, rulings of law, and benefit awards made in those decisions are essential to the issues raised in the current appeal, we set them forth.

In the first decision, filed on May 11, 1995 and amended on May 30, 1995, the judge found that the employee had sustained compensable injuries to his left and right shoulders on April 23, 1988 and May 3, 1992, respectively. He awarded the employee six distinct periods of total and partial incapacity benefits commencing on August 3, 1992, when the employee first lost time from work due to his right shoulder injury. As to the periods of incapacity attributed to the right shoulder injury, the judge awarded benefits at the rates applicable to the 1992 injury, i.e., § 34 benefits equal to sixty per cent of the employee's 1992 average weekly wage, stipulated by the parties to be $852.88, and § 35 benefits equal to sixty per cent of the difference between the employee's average weekly wage and the assigned earning capacity. As to the sole period of total incapacity attributed to the employee's left shoulder injury, that commencing in December 1993 with the first of two surgeries on that shoulder, the judge awarded benefits at the rate applicable to the 1988 injury, i.e., § 34 benefits equal to two-thirds of the employee's average weekly wage, capped at the then statutory maximum of $411.00, based, however, on the 1992 stipulated average weekly wage. As to two periods of partial incapacity, commencing in 1994 and found by the judge to be causally related to both shoulder injuries, the judge applied the provisions of § 1(7A), and found the 1988 left shoulder injury to be "the predominant cause" of that partial incapacity. Therefore, he awarded § 35 benefits, again based on the 1992 average weekly wage, but pursuant to the formula applicable to the 1988 injury, see footnote 3, infra, and capped at the same $411.00 weekly statutory maximum. (DIA Ex. 4.)

The insurer appealed, and the reviewing board held that because the 1988 left shoulder injury was compensable under c. 152, § 1(7A) was inapplicable to the employee's claimed incapacity from 1994 and continuing. The board recommitted the case to the judge "for further findings as to the causal relationship of the claimed impairment beginning in 1994, in accordance with correct principles of law." DeFeo v. Mobil Oil Corp., 11 Mass. Workers' Comp. Rep. 199, 202 (1997).

In his June 30, 1997 decision on recommittal, the administrative judge found that the "as is" standard of causation, and not the "a major" standard under § 1(7A), applied to all periods of incapacity claimed after the employee's 1992 right shoulder injury. The judge held that "the proper law to apply to the employee's fourth, fifth and sixth periods of disability, is the law in force on the date of the 1992 injury." (DIA Ex. 3, p. 661.) For the sixth period of claimed incapacity, the judge assigned the employee a $240.00 earning capacity and awarded weekly § 35 benefits of $367.72, from October 14, 1994 and continuing. ( Id. at p. 662.)

In his third hearing decision, filed on July 29, 1999, the administrative judge denied the employee's claim for § 34A permanent and total incapacity benefits, and instead awarded him "section 35 partial disability compensation from March 12, 1998 until the exhaustion of section 35 benefits," based on an assigned earning capacity of $240.00 and the same 1992 average weekly wage of $852.88. (DIA Ex. 2, p. 439.)