Board No. 020897-89Commonwealth of Massachusetts Department of Industrial Accidents
Filed: March 12, 1996
REVIEWING BOARD DECISION
(Judges Kirby, Smith and Maze-Rothstein)
APPEARANCES:
Pasquale J. Ventola, Esquire, for the employee
Dwight D. Valentine, Esquire, for the insurer
KIRBY, J.
The employee appeals from a decision in which the judge allowed the insurer to terminate § 34 incapacity benefits, and reserved the employee’s rights for specific compensation under § 36. We summarily affirm the decision with regard to the termination of weekly incapacity payments.
We must, however, remand the case for a determination of the employee’s § 36 claim. General Laws c. 152, § 11B states that “[d]ecisions of members of the board shall set forth the issues in controversy, the decision on each and a brief statement of the grounds for each decision.” Here the judge reserved on the § 36 issue because “[n]o testimony had been offered respecting specific losses of function or disfigurement.” (Dec. 8.) This conclusion is capricious since the record shows the employee did present evidence regarding permanent impairment, in the medical report of Dr. Albert M. Starr dated June 28, 1991. See (Employee’s Exhibit 2.) Therefore we vacate the judge’s general finding on the § 36 claim, and remand the case for further findings on the evidence.
The employee also raises an issue of illegal discontinuance for our determination. As the issue was not presented at hearing, we do not decide it here for the first time. We note in passing, nonetheless, that § 8(2) provides for no right of unilateral discontinuance pursuant to the provisions of § 35E. The judge may entertain a motion to join this issue for determination along with the § 36 claim on remand.
So ordered. _________________________ Edward P. Kirby Administrative Law Judge
_________________________ Suzanne E.K. Smith Administrative Law Judge
_________________________ Susan Maze-Rothstein Administrative Law Judge
Filed: March 12, 1996