Decision  Scott Wadsworth v. New England Concrete Pipe Co.

Date:	03/30/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 060657-80
Location:	Boston

• Employee: Scott Wadsworth
• Employer: New England Concrete Pipe Co.
• Insurer: Continental Insurance Co./CNA

COSTIGAN, J. The insurer appeals from a decision awarding the employee § 34A permanent and total incapacity benefits as of the date of a 2003 recurrence of a 1980 industrial injury. The insurer challenges the decision on several fronts. Finding merit in three, namely, the administrative judge's erroneous application of the average weekly wage adjusting provisions of § 51,¹ his mishandling of the rate-enhancing provisions of § 35B,² and his ruling on the insurer's recoupment claim, we reverse the decision in part.

¹ General Laws c. 152, § 51, provides:

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee's benefits under this section shall not be limited to the circumstances of the employee's particular employer or industry at the time of injury.

² General Laws c. 152, § 35B, provides, in pertinent part:

An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury. . . .