Decision  Richard W. Cookson, Jr. v. Suffolk County Sheriff's Dept.

Date:	04/29/2011
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 033209-04
Location:	Boston

• Employee: Richard W. Cookson, Jr.
• Employer: Suffolk County Sheriff's Dept.
• Self Insurer: Commonwealth of Massachusetts (1)

HORAN, J. The self-insurer appeals from a decision awarding the employee a closed period of § 34 total incapacity benefits and ongoing § 35 partial incapacity benefits. It maintains the judge's decision is internally inconsistent, and that he erred by failing to terminate the employee's benefits following its offer of suitable employment. See § 35D.³ We affirm the decision.

¹ According to the board file, at the hearing the City of Boston was the self-insurer. By the time the decision was appealed, the Commonwealth of Massachusetts had assumed responsibility for the payment of compensation as self-insurer.

² Judge Fabricant recused himself from this case and did not participate in panel deliberations.

³ General Laws c. 152, § 35D, provides, in pertinent part:

For purposes of sections thirty-four, thirty-four A and thirty-five, the weekly wage the employee is capable of earning, if any, after the injury, shall be the greatest of the following:

(3) The earnings the employee is capable of earning in a particular suitable job; provided, however, that such job has been made available to the employee and he is capable of performing it.

(4) The earnings that the employee is capable of earning.