LEVINE, J.

This is the employee's appeal from an administrative judge's decision ordering a closed period of G.L.c. 152, § 34 temporary total incapacity benefits and related medical benefits. Finding error, we reverse in part and remand this matter for further findings consistent with this opinion.

The employee has a ninth grade education and worked for 22 years as a nurse's aide. On September 20, 1993, she slipped on a wet floor and fell to the ground at her place of employment, sustaining a concussion as well as knee pain and back injuries. (Dec. 531-532.) She remained out of work for about a month and attempted to return to work on a light duty basis in October, 1993. Id. at 532. After two days, she stopped working because of increased back pain. Id. The employee again attempted to return to work in December 1993, but she lasted only 3 days. She has not returned to work since. Id.

The insurer paid workers' compensation benefits without prejudice from September 21, 1993, to December 15, 1993. Thereafter, the employee filed a claim for further benefits. Following a conference, the judge issued an order on May 27, 1994, that the insurer provide the employee with medical benefits and pay the employee on-going 35 partial incapacity compensation at the weekly rate of $162.00 based on an average weekly wage of $353.25 and an earning capacity of $83.25. The insurer appealed for a hearing. In the decision that followed, the judge ordered § 34 benefits from September 20, 1993 to March 20, 1994, and medical benefits ending on March 20, 1994.

There was no error in the judge's denial of the employee's motion to find the impartial physician's report inadequate. The impartial physician was able to express his opinion, to a reasonable degree of medical certainty, that the employee's work-related low back strain of September 20, 1993, resolved as of six months thereafter. His opinion was not speculative; it was based on the history he received, the reports he reviewed, and his examination of the employee. Contrast George v. Chelsea Hous. Authy., 10 Mass. Workers' Comp. Rep. 22, 24-25 (1996).

On another issue, however, we find error, and the case must be remanded. The employee testified that on her second attempt to return to work in December 1993, she hurt her back as she was bending down cleaning kitchen carts. Insurer's counsel cross-examined the employee on this testimony, and presented a witness who testified that the employee told that witness that the employee left work in December 1993 for reasons unrelated to her back condition.

Thereafter, insurer counsel objected to the evidence relating to the alleged December 1993 incident. He argued that the insurer would be prejudiced if a claim based on a December 1993 incident were allowed to be pursued because the employee had never formally filed a claim alleging a December 1993 injury date. He argued, in effect, that the insurer did not undertake a full investigation. The judge ruled that he was going to allow the evidence to stay in. However, he stated that he would not deal with a claim for aggravation, and he did not make findings thereon in his decision.

We find error in his failure to do so. In the present case, the lay testimony was taken in November 1994 following the October 1994 deposition of Dr. Howard. In that deposition, Dr. Howard testified that if the employee suffered a new injury in December 1993 (or October 1993), then "the clock starts running" anew, so that the period of disability from the new injury would be measured from December 1993, and not September 1993. It is obvious that the insurer was prepared for a December 1993 claim by the employee because the insurer, at hearing, countered the employee's claim of a December 1993 incident by presenting its witness who rebutted the employee's testimony.

The better practice, of course, is for a written motion to amend the claim as to the time of the injury. See 452 CMR 1.23. But where the issue was in fact tried by consent (the insurer did not object until practically all the evidence thereon was in), we see no reason why that issue should not be decided; the claim should be deemed amended. Compare Mass. R. Civ. P. 15 (b). Contrast Richards v. Walbaum's Food Mart, 10 Mass. Workers' Comp. Rep. 328, 330-331 (1996) (insurer may have been surprised). Therefore, this case must be remanded for the judge to make findings on the alleged incident in December 1993 and, if he finds there was such an incident, its effect on the employee's disability and extent thereof.

Finally, we reverse the judge's decision insofar as he terminated medical benefits as of March 20, 1994. By the time of hearing, this was an accepted liability case, and the judge found a period of total incapacity. It was error to cut off reasonable and related medicals for the employee's industrial injury. Even where entitlement to weekly benefits may be foreclosed, an employee is entitled to on-going § 30 benefits, so long as they are necessary, reasonable and related to the industrial injury. Tigano v. Acme Boot Co., 8 Mass. Workers' Comp. Rep. 145, 148 (1994).

So ordered.

___________________________ Frederick E. Levine Administrative Law Judge

___________________________ Sara Holmes Wilson Administrative Law Judge

___________________________ Carolynn N. Fischel Administrative Law Judge

Filed: April 15, 1997