Decision  Ilidio Cruz v. Smith & Wesson

Date:	05/17/2010
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 006332-02
Location:	Boston

• Employee: Ilidio Cruz
• Employer: Smith & Wesson
• Self Insurer: Smith & Wesson

KOZIOL, J.  The self-insurer appeals the decision of the administrative judge, awarding the employee § 35 partial incapacity benefits and attorney fees.¹  The self-insurer argues the judge erred by mischaracterizing the sole medical opinion in evidence which, it contends, failed to satisfy the employee's burden of proof under § 1(7A).²  (Self-ins. br. 9, 10-12.) We agree, and reverse the decision. Therefore, we do not reach the other issues raised by the self-insurer.

¹  In his May 12, 2009 decision, the judge ordered the self-insurer to pay the employee "Section 35 benefits from June 1, 2007, to date in the amount of $356.15 per week, based on an average weekly of $918.58 and an earning capacity of $320.00 per week." (Dec. 5.) However, the self-insurer states the judge awarded "ongoing" § 35 benefits, (Self-ins. br., 8), which coincides with the award entered in our department's electronic Case Management System (CMS).

²  General Laws c. 152, § 1(7A), provides in pertinent 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.