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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).

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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.

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