FOLEY v. EXXON MOBIL SERVICE FLEET OPERATIONS

HORAN, J.

The employee appeals from a decision denying the application of the presumption of incapacity in § 8(2) to his claim for weekly benefits for the period following his termination from work. We affirm the decision.

The employee underwent back surgery, necessitated by a prior work-related injury, before returning to work as a tanker truck driver in June 2004. He alleged he suffered two subsequent work-related back injuries, on July 31, 2004 and September 10, 2004. He had back surgery again on March 9, 2005, and was discharged by his treating physician six months later. (Dec. 5-7.)

The insurer paid § 34 benefits from September 10, 2004, to November 30, 2004, on a without prejudice basis. It subsequently denied the employee's claim for further benefits. Following the conference on the employee's claim, the judge issued an order awarding the employee § 34 benefits from November 23, 2004, to date and continuing. Both parties appealed to a full evidentiary hearing. (Dec. 2.)

On the first day of the hearing, November 17, 2005, the employee testified he had recovered successfully from his last surgery and was virtually symptom free. (Dec. 7.) He also testified that he remained on workers' compensation benefits. (Tr. 72.) Following the employee's testimony, the parties stipulated the employee had been cleared to return to work on December 7, 2005 by a functional capacity evaluation performed at the employer's request. (Dec. 3-4, 13.) The parties also stipulated that before the employee had the opportunity to return to work following that evaluation, his employment was terminated. (Dec. 3, 13.) There is no evidence in the record, or in the board file, that the insurer, at any time prior to the filing date of the hearing decision, modified or discontinued the payment of the § 34 benefits ordered at conference.

In his hearing decision the judge credited the employee's testimony, adopted the medical evidence clearing his return to regular work, and awarded him § 34 benefits from December 1, 2004 to December 7, 2005. (Dec. 12, 14.) The judge also ordered the insurer to pay for the employee's reasonable and necessary medical treatment, and an enhanced attorney's fee. However, the employee's claim for the application of § 8(2) was denied. (Dec. 14.)

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the employee raises one issue on appeal. He contends the judge, when addressing the employee's claim for benefits for the period following December 7, 2005, erred by refusing to apply the presumption of incapacity found in the last sentence of § 8(2). We disagree. That presumption applies expressly to "clause (d) of this section. . . ." Section (d) of § 8(2) permits an insurer to unilaterally discontinue or modify an employee's weekly compensation payments in very specific circumstances. See footnote 1, supra. Here, there is nothing in the record to indicate that the insurer ever modified or discontinued the employee's benefits pursuant to § 8(2)(d). Consequently, the employee cannot prove that he accepted the employer's offer of work, yet was terminated "subsequent to a modification or termination pursuant to this [§ 8(2)(d)] paragraph." Because the requisite elements of the statutory presumption of incapacity are absent, we affirm the decision.

So ordered.

_____________________________ Mark D. Horan Administrative Law Judge

_____________________________ William A. McCarthy Administrative Law Judge

____________________________ Bernard W. Fabricant Administrative Law Judge