Decision  Joseph Leary v. MBTA

Date:	03/11/2010
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board No. 044974-00
Location:	Boston

• Employee: Joseph Leary
• Employer: MBTA
• Self Insurer: MBTA

KOZIOL, J. The employee appeals from a decision denying his claim for § 34A permanent and total incapacity benefits. the employee argues the judger erred by referencing and relying on a five-year old surveillance videotape not admitted into evidence, and performing her analysis under § 1(7A)'s "a major" cause standard.¹ Because we agree the judge erred with respect to the videotape, we vacate the decision and recommit the case for further findings.

¹  General Laws, c. 152, § 1(7A), providers in pertinent part:

If a compensable injury or disease combines with a pre-existing condition, which resulted from any injury or disease that is 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 no necessarily predominant cause of disability or need for treatment.