Decision  Jean McCarthy v. Peabody Properties, Inc.

Date:	03/20/2015
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 007656-02
Location:	Boston

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

CALLIOTTE, J. The insurer appeals from the third hearing decision in this case, which awarded § 34A permanent and total incapacity benefits from the date of the close of evidence of the first hearing. The insurer argues that, because the employee failed to appeal a reviewing board decision reversing the award of § 34A benefits made in the second hearing decision, she is barred by principles of res judicata from bringing a further § 34A claim.¹ We disagree, and affirm the decision.

¹ There have been two prior hearing decisions awarding § 34A benefits, each of which was appealed, resulting in two prior reviewing board decisions. McCarthy v. Peabody Props., 24 Mass. Workers’ Comp. Rep. 89 (2010)("McCarthy I"); and McCarthy v. Peabody Props., 26 Mass. Workers’ Comp. Rep. 1 (2012)("McCarthy II"). The hearing decision filed on March 26, 2008 will be referred to as "Dec. I"; the decision filed October 22, 2010, as "Dec. II"; and the decision on appeal here, filed September 27, 2013, as "Dec. III."