Decision

Decision  Sebastian Blanco v. Alonso Construction

Date: 07/17/2012
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 032965-06
Location: Boston
  • Employee: Sebastian Blanco
  • Employer: Alonso Construction
  • Insurer: Continental Casualty Co.

HORAN, J. The parties cross appeal from a decision awarding closed periods of weekly incapacity benefits. The employee argues for 1) an increase in his average weekly wages based on presumptive earnings under fair wage statutes; 2) a reversal of the termination of benefits; and 3) recommittal for further proceedings on the extent of ongoing incapacity after joinder of a successive insurer. The insurer argues that the employee’s average weekly wages should be decreased by subtracting “under the table” payments made by the employer. In so arguing, the insurer advocates that we overturn our decision in McIntyre v. Seymour H. Andrus, DMD, PC, 16 Mass. Workers’ Comp. Rep. 222 (2002). As to the present decision, we affirm it in part; but we vacate that part of the decision terminating benefits as of September 16, 2009. We agree with the employee that the administrative judge erred when he determined entitlement to benefits without joining successive insurers and, therefore, without litigating the employee’s claim in one proceeding.

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