Decision Roland Caron v. Rusco/Regis Steel Co.

Date: 03/14/2005
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 036398-98
Location: Boston
  • Employee: Roland Caron
  • Employer: Rusco/Regis Steel Co.
  • Insurer: National Union Fire Ins. Co.

CARROLL, J. The employee and the insurer cross-appeal from a decision in which an administrative judge awarded ongoing partial incapacity benefits for a July 6, 1998 industrial injury, based on an average weekly wage computed in accordance with the "prevailing wage" provisions of G. L. c. 149, §§ 26 and 27. We summarily affirm the decision with regard to the insurer's arguments that the judge erred in applying the prevailing wage statute to the employee's average weekly wage.1 We agree with the employee that the judge used erroneous reasoning in rejecting the employee's claim that § 35B should apply to enhance his average weekly wage after his unsuccessful return to work. We reverse that aspect of the decision. We recommit the case for further findings on whether the employee sustained a "subsequent injury" within the provisions of § 35B, such that the section would apply.



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1We also summarily affirm the decision with regard to both parties' challenges to the judge's assignment of a weekly $250.00 earning capacity. See Mulcahey's Case, 26 Mass. App. Ct. 1 (1988)(court sanctioned adjudicatory expertise of administrative judges on earning capacity issues).