Decision  Davis P. LaBonte v. D. A. Sullivan and Sons, Inc.

Date:	08/27/2009
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 011290-02
Location:	Boston

• Employee: Davis P. LaBonte
• Employer: D. A. Sullivan and Sons, Inc.
• Insurer: Eastern Casualty Insurance Co.

COSTIGAN, J. The insurer appeals from an administrative judge's award of § 34A permanent and total incapacity benefits for the employee's work-related failed back syndrome.² Because the judge did not address the insurer's duly raised defense of § 1(7A) "a major" causation applicable to combination injuries, we recommit the case for further findings.

¹ Judge Horan recused himself from this case and did not participate in panel deliberations.

² The genesis of the second round of litigation in this case was the insurer's complaint for modification or discontinuance of compensation, filed on June 30, 2006. See Rizzo v. M.B.T.A., 16 Mass. Workers' Comp. Rep. 160, 161 n.3 (2002)(reviewing board may take judicial notice of documents in board file). At the § 10A conference, the employee was allowed to join a claim for § 34A benefits. By conference order filed on November 16, 2006, both the employee's § 34A claim and the insurer's complaint were denied. Only the employee appealed from that conference order. (Dec. 2.)