Decision  Robert F. McCambly v. MBTA

Date:	02/28/2007
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 016660-99
Location:	Boston

• Employee: Robert F. McCambly
• Employer: MBTA
• Self Insurer: MBTA

COSTIGAN, J. The self-insurer appeals from a decision in which an administrative judge awarded the employee § 34A permanent and total incapacity benefits for a May 6, 1999 work-related low back injury. The self-insurer argues the judge erred by failing to deem the light duty job offered by the employer suitable and available, within the meaning of § 35D,¹ and by awarding a § 8(5) penalty² for the self-insurer’s illegal modification of weekly benefits. We affirm the decision.

¹  General Laws c. 152, § 35D, provides, in pertinent part, that an employee’s earning capacity may be based on:

(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.

                                               . . .

(5) For purposes of this chapter, a suitable job or employment shall be any job that the employee is physically and mentally capable of performing, including light work, considering the nature and severity of the employee’s injury, so long as such job bears a reasonable relationship to the employee’s work experience, education, or training, either before or after the employee’s injury.

²  General Laws c. 152, § 8(5), provides, in pertinent part:

Except as specifically provided above, if the insurer terminates, reduces, or fails to make any payments required under this chapter, and additional compensation is later ordered, the employee shall be paid by the insurer a penalty equal to twenty per cent of the additional compensation due on the date of such finding.