Decision  Todd A. Bruenell v. Town of Framingham

Date:	04/07/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 001533-83
Location:	Boston

• Employee: Todd A. Bruenell
• Employer: Town of Framingham
• Self Insurer: Town of Framingham

COSTIGAN, J. The self-insurer appeals from a decision in which the administrative judge increased the employee's weekly incapacity benefit by enhancing his average weekly wage under the provisions of G. L. c. 152, § 51.¹ Because we agree with the self-insurer that the employee failed to meet his burden of proving the applicability of § 51 to his claim, we reverse the decision in that regard.²

¹  General Laws, c. 152, § 51 , provides:

Whenever an employee is injured under circumstances entitling him to compensation, if it be established that the injured employee was of such age and experience when injured that, under natural conditions, in the open labor market, his wage would be expected to increase, that fact may be considered in determining his weekly wage. A determination of an employee's benefits under this section shall not be limited to the circumstances of the employee's particular employer or industry at the time of injury.

As amended by St. 1991, c. 398, § 78, and deemed procedural by St. 1991, c. 398, § 107.

² We therefore do not reach the self-insurer's arguments concerning its defenses of laches, late notice and late claim. (Self-ins. br. 23-25.)