| Date: | 08/09/2001 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 038554-97 |
| Location: | Boston |
- Employee: Tod Peterson
- Employer: Edward J. Vella, Jr.
- Insurer: Granite State Insurance Co.
LEVINE, J. The employee and insurer cross-appeal from a decision in which an administrative judge awarded a closed period of G.L. c. 152, §34, total incapacity benefits, and ongoing §35 partial incapacity benefits, for an accepted industrial injury. The insurer contends that the judge erred in calculating the average weekly wage based on year-round – rather than seasonal – employment. We summarily affirm the decision as to that conclusion. The employee argues that the judge erred by denying his claim for a §8(5) penalty based on the insurer’s illegal reduction of incapacity benefits, and by assigning an earning capacity unsupported by the evidence. We summarily affirm the judge’s assignment of an earning capacity. We reverse the denial of a §8(5) penalty, and order that it be paid.