Decision Robert Andre v. F.C. Construction Corporation

Date: 05/24/2005
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 028141-02
Location: Boston
  • Employee: Robert Andre
  • Employer: F.C. Construction Corporation
  • Insurer: Commerce & Industry Insurance Co.

COSTIGAN, J. The employee appeals from a decision in which an administrative judge awarded him § 35 partial incapacity benefits, rather than the total incapacity benefits he sought for his accepted low back injury, and then discontinued those benefits as of the date of the § 11A physician's deposition. The employee challenges the decision on two fronts. He argues that use of the deposition date for termination of benefits was improper. On the specific facts of this case, we disagree, for the reasons set forth. However, we do agree with the employee's other argument: although the judge allowed additional medical evidence for the "gap" period prior to the § 11A examination, he failed to make findings of fact regarding that evidence. For that reason, we recommit the case for further proceedings as to that period of disputed incapacity. Because the administrative judge who rendered the decision no longer serves with the department, the hearing on recommittal must be de novo.

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