| Date: | 01/07/2003 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 039016-96 |
| Location: | Boston |
- Employee: Enid S. Liberman
- Employer: McLean Hospital
- Self Insurer: Partners Healthcare System, Inc.
CARROLL, J. The employee and self-insurer cross-appeal from a decision in which an administrative judge awarded the employee a closed period of temporary total benefits and ongoing partial benefits for a 1996 lower back injury. The parties are in agreement that the judge erred by awarding temporary total incapacity benefits for fifty-three weeks beyond the three-year statutory maximum entitlement. See G. L. c. 152, § 34. The employee argues that she proved entitlement to § 34A permanent and total incapacity benefits, continuing from the exhaustion of § 34 benefits. The self-insurer disagrees and argues that the judge’s incapacity assessment and earning capacity assignment were arbitrary and capricious, that he erred in allowing the employee to join her claim for permanent and total incapacity benefits at hearing, and that he erred by failing to address the properly raised issue of § 1(7A) major causation. We disagree with the employee’s assertion of entitlement to § 34A benefits, and summarily affirm the decision as to her appeal. The self-insurer’s argument on § 1(7A) has merit, but the judge’s error is harmless in light of the adopted medical evidence. We otherwise affirm the decision, with the exception of reversing the erroneous award of fifty-three weeks of § 34 benefits, and assign maximum § 35 benefits for that period pursuant to Marino v. M.B.T.A., 7 Mass. Workers’ Comp. Rep. 140, 141-142 (1993).