| 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.