BOARD No. 104139-86Commonwealth of Massachusetts Department of Industrial Accidents
Filed: June 23, 1997
REVIEWING BOARD DECISION
(Judges Fischel, Levine and Wilson)
APPEARANCES
Edward D. Murphy, for the employee.
Arthur Jackson, for the self-insurer.
FISCHEL, J.
The self-insurer appeals the decision of the administrative judge which denied its complaint to discontinue or modify the employee’s weekly incapacity benefits. Among its contentions, the self-insurer argues that it was error to place the burden on the self-insurer “to prove that the employee is capable of earning more than the assigned amount on a weekly basis.” (Dec. 7.) We agree with this contention and, therefore, we reverse the decision and recommit the case for a new decision applying the correct burden of proof.
The employee sustained an industrial injury to his back on October 28, 1986 while shoveling asphalt at work. (Dec. 2.) The self-insurer accepted liability and paid G.L.c. 152, § 34
temporary total incapacity benefits. Upon the self-insurer’s complaint to modify or discontinue benefits, the employee was assigned a $75 per week earning capacity on October 24, 1991, and payments were reduced to G.L.c. 152, § 35 partial incapacity benefits. On February 3, 1993, the self-insurer filed a second complaint to modify or discontinue benefits, which was denied at conference. The self-insurer appealed but withdrew after receiving the impartial medical report. Id. On December 7, 1994, the self-insurer filed another complaint to modify or discontinue benefits. Id. The complaint was denied at conference and the self-insurer appealed to a hearing de novo. Id.
Pursuant to G.L.c. 152, § 11A, Doctor Alemian examined the employee on February 17, 1995. (Dec. 5.) Relying on the report and testimony of Dr. Alemian, the judge found that the employee’s $75 weekly earning capacity assigned in 1991 continued, “since the self-insurer has failed to prove that the employee is capable of earning more than the assigned amount on a weekly basis.” (Dec. 7.) The judge, therefore, denied the insurer’s complaint to modify or discontinue the employee’s weekly benefits. Id.
On appeal, the self-insurer raises three arguments: 1) that the judge erroneously shifted the burden of proof onto the self-insurer; 2) that it was error to prohibit the showing of a videotape to the impartial physician;[1] and 3) that the assigned earning capacity was arbitrary and capricious. We find the first issue to be dispositive, and therefore do not reach the latter two.
It is well settled that the employee has the burden of proving every element of his claim in a discontinuance action brought by the insurer. In Quigley v. Raytheon,
10 Mass. Workers’ Comp. Rep. 291, 293 (1996), we stated that “[e]ven though the discontinuance action was initiated by the insurer, it raises the same incapacity and causal relationship issues as are present in an employee’s original claim for compensation.” Therefore, “[t]he burden of proving benefit entitlement does not shift; in a discontinuance proceeding, it continues to rest on the employee.”Id. See also Russell v. Red Star Express Lines,
8 Mass. Workers’ Comp. Rep. 404 (1994); Ginley’s Case, 244 Mass. 346
(1923). As the judge here impermissibly shifted the burden to the self-insurer to prove that “the employee is capable of earning more than the assigned amount,” the decision is contrary to law and thus, error. Accordingly, we reverse the decision and recommit the case for a new decision applying the correct burden of proof.
So ordered.
______________________________ Carolynn N. Fishcel Administrative Law Judge
______________________________ Frederick E. Levine Administrative Law Judge
______________________________ Sara Holmes Wilson Administrative Law Judge
Filed: June 23, 1997