| Date: | 09/11/2012 |
|---|---|
| Organization: | Department of Industrial Accidents |
| Docket Number: | DIA Board No. 042454-01 |
| Location: | Boston |
- Employee: Susan Conley
- Employer: Deerfield Academy
- Insurer: NEEIA Compensation, Inc.
KOZIOL, J. The employee appeals from a decision modifying her weekly incapacity benefits from permanent and total under § 34A, to § 35 partial incapacity benefits of $91.78 per week, based on an average weekly wage of $472.89 and a $320 earning capacity, as of February 2, 2011. The employee raises two related claims of error: 1) the insurer failed to meet its burden of production to show an improvement in the employee’s physical or vocational condition; and 2) the adopted medical evidence did not support a finding that the employee’s physical condition had improved after the 2006 decision placing the employee on § 34A benefits. We agree reversal is required as a matter of law and, therefore, we reverse the modification order and deny and dismiss the insurer’s modification complaint.