In re Doonan

In an appeal from an earlier decision in this case, a panel of this court vacated the award and remanded to the reviewing board for recommittal to the administrative judge for a computation and explanation of the amount that the employee was capable of earning each week and of the resulting amount of the award. See Doonan's Case, 81 Mass.App.Ct. 1121 (2012) ( Doonan I ) (unpublished decision under rule 1:28). Because the calculation of the award here rests on the determination of earning capability contained in the decision vacated in Doonan I, the award now on appeal must also be vacated, and the case remanded for recomittal to the administrative judge for reconsideration of the amount of the partial disability award in light of our memorandum and order in that previous appeal. To the extent that the remand in Doonan I may not have resolved any question the administrative judge may have with respect to earning capability as it pertains to the present appeal, as in Doonan I, “the ‘information already present in the case file, or reliable publications of labor statistics, or additional evidence’ may be consulted.” Eady's Case, 72 Mass.App.Ct. 724, 728 (2008), quoting from Dalbec's Case, 69 Mass.App.Ct. 306, 318 n. 14 (2007). In all other respects, the decision of the reviewing board is affirmed. In particular, in light of the evidence examined by the administrative judge and the judge's conclusion that there was no worsening in the employee's condition since the issuance of the administrative judge's prior decision, we see no merit in the employee's complaint that the administrative judge inadequately considered the employee's condition during the period prior to the issuance of the previous decision.

So ordered.