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Decision William Stone v. All Season Painting and Decorating

Date: 08/21/2014
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 018409-08
Location: Boston
  • Employee: William Stone
  • Employer: All Seasons Painting and Decorating
  • Insurer: Hartford Insurance Co.

KOZIOL, J. The employee appeals from a decision determining that he was an employee of Robert Beaumier, an uninsured independent subcontractor of All Seasons Painting & Decorating, and awarding him a closed period of § 34 total incapacity benefits at a rate of $153.85 per week based on an average weekly wage of $153.85.1 The sole issue raised on appeal is the employee’s claim that the judge erred in determining his average weekly wage.2 We affirm.

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1  Previously, we affirmed so much of another judge’s decision as determined the employee was not a direct employee of All Seasons Painting and Decorating and that Mr. Beaumier was an independent subcontractor of All Seasons Painting and Decorating. Stone v. All Seasons Painting and Decorating, 25 Mass. Workers’ Comp. Rep. 227, 235 (2011). Because that judge no longer served at the department, we recommitted the matter for a hearing de novo before a different judge, regarding the nature of the relationship between Mr. Stone and Mr. Beaumier, and, if necessary, the applicability of § 18. Id. We also authorized the new judge to address any remaining issues raised by the parties. Id.

General Laws c. 152, § 1(1), defines "average weekly wages," in pertinent part, as,

the earnings of the injured employee during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employee lost more than two weeks’ time during such period, the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted. Where, by reason of the shortness of the time during which the employee has been in the employment of his employer or the nature or terms of the employment, it is impracticable to compute the average weekly wages, as above defined, regard may be had to the average weekly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.