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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.

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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.