Decision  Jean McCarthy v. Peabody Properties

Date:	01/05/2012
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 007656-02
Location:	Boston
Referenced Sources:	Jean McCarthy v. Peabody Properties, Inc.

• Employee: Jean McCarthy
• Employer: Peabody Properties
• Insurer: United States Fire Insurance Co.

LEVINE, J. After a recommittal for findings on the application of § 1(7A) “combination injury” provisions, see McCarthy v. Peabody Props., 24 Mass. Workers’ Comp. Rep. 89 (2010), the case is before us again on the insurer’s appeal of the recommittal decision. The insurer argues that the administrative judge erred in finding that the employee’s pre-existing osteoarthritis was work-related, and therefore, that the heightened causation standard -- “a major but not necessarily predominant cause” -- did not apply to the employee’s January 7, 2002 industrial right knee injury.¹ See Lawson v. M.B.T.A., 15 Mass. Workers’ Comp. Rep. 433, 437 (2001)(where pre-existing condition retains connection to earlier compensable injury, condition cannot be characterized as “not compensable under this chapter,” thus removing claim from § 1(7A) “combination injury” analysis). Because the medical evidence does not support the judge’s § 1(7A) findings, we reverse the decision.

The judge’s findings on recommittal causally related the employee’s osteoarthritis to a December 12, 2001 right knee injury which occurred at work:

I conclude that osteoarthritis did not exist in the employee’s right knee before December 12, 2001, when the first right knee industrial accident occurs [sic]. The sequelae from the resulting injuries of December 12, 2001 were still ongoing when the second industrial right knee injury occurred January 7, 2002. Only after the March 2002 surgery does the osteoarthritis gain traction and become a factor in the future care and treatment of the Employee’s right knee. Thus, Section 1(7A) ceases to be in play as an affirmative defense because the right knee osteoarthritis is a compensable work related condition arising after the right knee injury of December 12, 2001.

(Dec. 3.)

¹ 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.