Decision

Decision  Shoshana Yeshaiau v. Mt. Auburn Hospital

Date: 02/06/2013
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 016890-05
Location: Boston
  • Employee: Shoshana Yeshaiau
  • Employer: Mt. Auburn Hospital
  • Insurer: Caregroup, Inc.

KOZIOL, J. Both parties appeal from a decision concluding that although G. L. c. 152, § 36(1)(j)1 permits an award for permanent loss of psychiatric function, the employee was not entitled to those benefits because she failed to prove she was permanently impaired. We affirm the judge’s decision that psychiatric loss of function benefits are recoverable pursuant to § 36(1)(j). However, because the self-insurer did not raise the issue of permanency at hearing and stipulated to the amount due should § 36(1)(j) be found to contemplate an award of benefits for such a loss, we reverse the decision on that issue, and order payment of the stipulated amount.

 

 

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1  General Laws c. 152, § 36(1)(j) provides:

For each loss of bodily function or sense, other than those specified in the preceding paragraphs of this section, the amount which, according to the determination of the member or the reviewing board, is a proper and equitable compensation, not to exceed the average weekly wage in the commonwealth at the date of injury multiplied by thirty-two; provided, however, that the total amount payable under this paragraph shall not exceed the average weekly wage in the commonwealth at the date of injury multiplied by eighty.

The decision erroneously refers to this provision as “§ 36(j).”

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