DREBEN, J.
The insurer appeals from a judgment in favor of the employee affirming a decision of the Industrial Accident Board (board) which awarded the employee forty dollars a week partial compensation under G.L.c. 152, § 35, as appearing in St. 1973, c. 978, § 6. At issue is whether an employee whose earning capacity is impaired by industrial injuries is precluded, as matter of law, from obtaining benefits because, by
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