Decision

Decision  Robert C. Chrigstrom v. Kenoza Vending Co., Inc.

Date: 05/18/2018
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 013203-15
Location: Boston
  • Employee: Robert C. Chrigstrom
  • Employer: Kenoza Vending Co., Inc.
  • Insurer: Merchant’s Mutual Ins. Co

KOZIOL, J.  The insurer appeals from a decision denying its complaint to modify or discontinue payment of the employee’s § 34 temporary total incapacity benefits, and ordering it to pay the employee medical benefits “for the Employee’s diagnosed right upper extremity and shoulder repairs” as well as § 34 benefits from May 22, 2015, to July 27, 2016, and § 34A benefits thereafter.  (Dec.  9.)  On appeal, the insurer raises one issue.  It argues the judge erred in ordering “§ 34A benefits” because the judge failed “to make findings or otherwise address [the] insurer’s properly raised failure to mitigate by refusing reasonable medical treatment defense.”  (Ins. br. 1.)  The employee argues the insurer waived the issue by failing to properly raise the affirmative defense below.  We agree that the insurer failed to raise the issue as an affirmative defense at any time prior to the hearing.  Nonetheless, the hearing record shows the issue clearly was tried by consent, without objection by the employee.  For the reasons that follow, we affirm in part and recommit for further findings of fact and rulings of law.

Table of Contents

Downloads   for Robert C. Chrigstrom v. Kenoza Vending Co., Inc.

Help Us Improve Mass.gov  with your feedback

Please do not include personal or contact information.
Feedback