Decision  Richard Ellison v. NPS Energy Services, Inc.

Date:	09/08/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Number 043302-96
Location:	Boston
Referenced Sources:	Edward Dullea v. General Electric Co. Robert J. Listaite v. Worcester Telegram & Gazette

• Employee: Richard Ellison
• Employer: NPS Energy Services, Inc.
• Insurer: Insurance Co. State of Pennsylvania

COSTIGAN, J. In Ellison v. NPS Energy Servs., Inc., 20 Mass. Workers' Comp. Rep. 345, 346 (2006), we recommitted this case to the administrative judge for additional findings addressing the employee's vocational profile, as his original decision was "bereft of the analysis required by Frennier's Case, 318 Mass. 635 (1945) and Scheffler's Case, 419 Mass. 251 (1994)." We concluded the judge had erred by using the employee's failure to seek work "as the only non-medical factor cited . . . in his findings."¹ Id. at 347. (Emphasis original.) The judge was supposed to make "an appropriate individualized assessment of the employee's post injury earning capacity under the [above] principles . . . in consort with § 35D." Id. at 349.

¹ The board also took issue with the judge's statement that the employee had agreed to a work capacity for the last four years he collected § 35 partial incapacity benefits, and had not searched for work even then. We noted the judge's reasoning flew "in the face of our stated view that employees are not required to prove a 'worsening' to qualify for § 34A benefits following receipt of § 35 benefits under a § 19 agreement. See Dullea v. General Electric Co., 19 Mass. Workers' Comp. Rep. 91, 93 (2005); Listaite v. Worcester Telegram & Gazette, 17 Mass. Workers' Comp. Rep. 485, 488 (2003)." Ellison, supra at 347 n.5.