No. 03796088 (1999). EMPLOYEE: Carol Lavoie.

• Case Date: March 22, 1999
• Court: Massachusetts

Massachusetts Workers Compensation 1999. No. 03796088 (1999). EMPLOYEE: Carol Lavoie COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF INDUSTRIAL ACCIDENTS EMPLOYEE: Carol Lavoie EMPLOYER: Zayre Corporation INSURER: Liberty Mutual Ins. Co.BOARD NO. 03796088REVIEWING BOARD DECISION (Judges Maze-Rothstein, Carroll and Levine)APPEARANCES Brian R. Cunha, Esq., for the Employee at hearing Honey Polner, Esq., for the Employee on brief Paul J. Burke, Esq., for the Insurer at hearing Thomas G. Brophy, Esq., for the Insurer at hearing Andrew P. Saltis, Esq., for the Insurer on brief MAZE-ROTHSTEIN, J. The insurer appeals a decision awarding the employee G.L.c. 152, § 35, weekly partial incapacity benefits, based on subsidiary findings of total incapacity. The employee's entitlement to § 34 temporary total incapacity weekly benefits had exhausted prior to the filing date of the decision. (Dec. 19.) The insurer contends that the award of partial incapacity benefits lacked the necessary evidentiary support. We disagree, because we consider that the judge had the equitable authority to make such a weekly benefits award. We affirm the decision. The employee, Carol Lavoie, was fifty-four years old at the time the hearing record was re-opened in 1995. (Dec. 4.) 1 After completing high school, she worked as a stitcher, secretary, waitress, occupational therapist assistant, house cleaner and as a substitute teacher. (Dec. 4.) For the employer, Zayre Corporation, she worked as an overnight stock clerk. Her duties included loading and unloading delivery trucks and stocking merchandise on shelves. (Dec. 4-5.) On June 10, 1988, while unloading a truck, an air conditioner box slipped from the employee's hand and struck the inner aspect of her left knee as it fell. (Dec. 5.) She stopped work immediately due to pain in the left knee. She treated conservatively until November 1988, when arthroscopic surgery was performed on her knee. (Employee Ex. 3, p. 11; Dec. 5, 9.) Post-operatively, the pain did not abate. The employee was then referred for pain management treatment. (Dec. 5.) Ms. Lavoie's recovery effort has spanned a number of years and an array of treatment modalities including: acupuncture, sympathetic blocks, steroid injections, surgical removal of a sympathetic nerve ganglion, physical therapy and various medications. (Dec. 5-8.) The...