- Employee: Rainey D. Slater
- Employer: G. Donaldson Construction
- Insurer: Eastern Casualty Insurance Co.
MCCARTHY, J. On October 22, 1996, Rainey D. Slater suffered an industrial injury arising out of and in the course of his employment. 1 The insurer accepted the case and began payment of weekly temporary total incapacity benefits under § 34 of the Act. The employee then filed a claim for § 34A weekly permanent and total incapacity benefits beginning November 24, 1997 and continuing. The insurer resisted payment of these benefits, contending that the employee must first exhaust the statutory maximum of three years of § 34 benefits before he could receive weekly permanent and total incapacity payments under § 34A. The § 34A claim was denied at a §10A conference and the employee appealed. At the evidentiary hearing the parties stipulated to the industrial injury of October 22, 1996. The parties also stipulated that the employee was totally incapacitated as a consequence of the accepted industrial injury. The parties agreed that a § 11A impartial physician’s exam was not necessary, as there was no dispute over medical issues. (March 22, 1999 Dec. 2.) In his decision the hearing judge recited the opinions of two of the treating physicians2 and took note of the stipulation that, "Mr. Slater is totally disabled." (March 22, 1999 Dec. 6.) He then made the following factual finding:
Upon a review of the medical evidence (Exhibit # 3) I find that Mr. Slater is disabled and that his disability is a permanent condition. I acknowledge Mr. Slater’s severe disability at this time, and that the employee has met his burden of persuasion to prove to me that Mr. Slater’s present incapacity is permanent. In reviewing the medical evidence that is submitted by the employee, I find that Mr. Slater is permanently totally disabled as of November 24, 1997.
(March 22, 1999 Dec. 6.)