Decision  Joseph A. McKenna, Jr. v. Pool & Spa Center

Date: 12/09/2003
Organization: Department of Industrial Accidents
Docket Number: DIA Board No. 038597-98
Location: Boston
  • Employee: Joseph A. McKenna, Jr.
  • Employer: Pool & Spa Center
  • Insurer: Eastern Casualty Insurance

MCCARTHY, J. The insurer appeals from a decision in which an administrative judge awarded weekly permanent and total incapacity benefits under G. L. c. 152, § 34A. The insurer argues that the § 11A medical opinion does not support the judge’s finding of permanent and total incapacity from January 8, 2002, the date of the employee’s exhaustion of § 34 temporary total incapacity benefits and that the earliest date that an award of § 34A benefits could be made is June 27, 2002, the date of the § 11A examination. It also argues that the judge failed to apply the provisions of § 1(7A)1 to the employee’s claim and, thus, committed an error of law in finding that the employee’s cervical disc herniation was causally related to his work-related low back injury or its sequelae. We disagree on both counts and affirm the decision.

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1 General Laws c. 152, § 1(7A), as amended by St. 1991, c. 398, 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.

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