Decision  Timothy Frager v. MBTA

Date: 11/26/2003
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 032920-97
Location: Boston
  • Employee: Timothy Frager
  • Employer: MBTA
  • Self Insurer: MBTA

MCCARTHY, J. The self-insurer appeals from a decision awarding the employee § 34A permanent and total incapacity benefits for his August 31, 1997 closed head injury at work. The self-insurer expresses amazement at the administrative judge’s conclusion that the employee cannot perform some sort of non-trifling occupation, and asserts that the administrative judge "bootstrapped" her findings to support her § 34A award by misusing the legal principles set out in Scheffler’s Case, 419 Mass. 635 (1994). We agree with the self-insurer that the subsidiary findings of fact do not adequately support the judge’s § 34A award, and necessitate a recommittal. Moreover, we reverse the § 34A award due to the judge’s reliance on a deposition that was not placed in evidence in this proceeding. We recommit the case for a hearing de novo, as the judge has recently retired.

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