Decision  Richard J. D'Agostino v. City of Worcester Parks & Recreation

Date:	06/12/2003
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 051879-73
Location:	Boston

• Employee: Richard J. D'Agostino
• Employer: City of Worcester Parks & Recreation
• Self Insurer: City of Worcester

WILSON, J. The parties cross-appeal from a decision denying the self-insurer’s complaint for discontinuance of permanent and total incapacity benefits to an employee left a quadriplegic after a 1973 injury while working as a lifeguard as a teenager. The employee correctly asserts that the judge failed to render a decision on an issue that was joined to the controversy, namely his claim for weekly wage augmentation under G. L. c. 152, § 51. We recommit the case for a new hearing on that matter.¹ The self-insurer’s appeal raises issues regarding the judge’s analysis of the employee’s capacity to earn. We agree with the self-insurer that the judge’s findings regarding the employee’s work in his company, RD Equipment, Inc., are deficient, and that recommittal on that issue is necessary. We otherwise affirm the decision, with the exception of a harmlessly erroneous application of the res judicata bar.

¹ The administrative judge has retired, and the recommittal is for a de novo hearing.