Decision  Frederick Searcy v. Lily Transportation Corp.

Date:	11/09/2021
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 003838-17
Location:	Boston, MA

• Employee: Frederick Searcy
• Employer: Lily Transportation Corp.
• Insurer: ACE American Insurance Co.

FABRICANT, J. The insurer appeals from the administrative judge’s decision awarding the employee § 34 temporary total incapacity benefits for a closed period, followed by ongoing § 35 partial incapacity and § 30 medical benefits. The insurer claims error because the judge does not specifically address § 35E¹ in his hearing decision. The insurer further alleges error in the judge’s ruling that § 1(7A)² did not apply, rendering the decision arbitrary, capricious and contrary to law. For the reasons that follow, we affirm the judge’s decision.

¹  General Laws, c. 152, § 35E states, in relevant part:

Any employee who is at least sixty-five years of age and has been out of the labor force for a period of at least two years and is eligible for old age benefits pursuant to the federal social security act or eligible for benefits from a public or private pension which is paid in part or entirely by an employer shall not be entitled to benefits under sections thirty-four or thirty-five unless such employee can establish that but for the injury, he or she would have remained active in the labor market.

²  General Laws, c. 152, § 1(7A) states, in relevant part:

If a compensable injury or disease combines with a pre-existing condition, which resulted from an injury or disease not compensable under this chapter, to cause or prolong disability or a need for treatment, the resultant condition shall be compensable only to the extent such compensable injury or disease remains a major but not necessarily predominant cause of disability or need for treatment.