Decision  Jean McCarthy v. Peabody Properties

Date:	06/23/2010
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 007656-02
Location:	Boston

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

COSTIGAN, J. The insurer appeals from the judge’s award of § 34A permanent and total incapacity benefits for the employee’s accepted, work-related right knee injury. The insurer argues, inter alia, that given the employee’s pre-existing osteoarthritis, the administrative judge erred by failing to apply the heightened causal relationship standard of § 1(7A).¹ We agree, reverse the decision and recommit the case for the judge to reconsider the medical evidence and conduct the requisite § 1(7A) analysis set forth in Vieira v. D’Agostino Assocs., 19 Mass. Workers’ Comp. Rep. 50 (2005).

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 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.