302 Mass. 562 | Mass. | 1939
This is an appeal from a decree of the Superior Court ordering the insurer to pay a lump sum award to the employee, in accordance with a decision of he Industrial Accident Board. The board found that the employee, a minor, at the date of his injury on December 29, 1934, received a permanently disabling injury which resulted in
The insurer contends that the employee has failed to show any impairment of earning capacity due to the injury; that the evidence did not warrant a finding that he left his employment because of a reasonable apprehension of further injury; that the evidence is insufficient as to how long the incapacity will continue to exist; that the section under which the award was made is unreasonable, and that the award was invalid as the insurer did not consent to it.
There was evidence that the employee was engaged in general work at a printer’s plant, sweeping floors, doing up bundles and shipping goods. He was struck in the eye by a flying nail which caused a perforating injury through the cornea, iris and lens of the eye. The eye specialist who attended him in behalf of the insurer testified that when he last saw him in November, 1935, “the boy had reached an end result at that time”; that he had seventy-five per cent vision in the injured eye; and that without glasses he could with that eye see large objects. The employee testified that he had difficulty in driving an automobile in the daytime as there was a glare in his right eye and he would have to keep the left eye closed; and that he could not operate an automobile at night. The single member observed the employee’s eyes and stated for the record
The employee, however, is not entitled to compensation for an industrial injury (other than injuries for which specific compensation is awarded under G. L. [Ter. Ed.] c. 152, §§ 36, 37) resulting in a physical disability if there is no impairment of earning capacity. The purpose of the workmen’s compensation act was to substitute for the then existing remedies a system of money payments based upon loss of wages. Gagnon’s Case, 228 Mass. 334. Devine’s Case, 236 Mass. 588. Federico’s Case, 283 Mass. 430. Donahue’s Case, 292 Mass. 329.
After the injury, the employee returned to work and continued at his regular occupation until he quit about the middle of November, 1937. He was paid at the same rate as he was paid before the accident, but his weekly wages were less than they were before the accident on account of the dull condition of the business. There is no evidence that he suffered any diminution of his power to earn while he was engaged at this employment, Johnson’s Case, 242 Mass. 489; Hurwitz’s Case, 280 Mass. 477, and
There was evidence that there was no opportunity for the employee to better his position by learning the printer’s trade. His request for an increase in salary was refused. He testified that when he asked his employer to permit him to learn a trade there the employer referred to the injured eye and said that the employee would have to take care of it. The employee had a fear he might get hurt again in the same way in which his previous injury occurred. Since he returned to work he had been struck in the cheek by a flying nail. The employer testified that the employee’s one fear was that he might again injure himself in a similar manner. We cannot say that the finding that his apprehension was reasonable and was an adequate cause for his seeking some other employment was unwarranted. A second injury to one of his eyes would be apt to cause more damage than it would to a normal person. The resulting mental condition of the employee would be an element of damages in an action of tort for personal injuries, and it could have been found that the apprehension that he experienced could be traced to his injury as a proximate cause. Roswell v. Leslie, 133 Mass. 589. Buckley v. Boston Elevated Railway, 215 Mass. 50. Sinclair’s Case, 248 Mass. 414. The employee was required to act fairly and reasonably toward the insurer if he intended to seek compensation. He could not remain idle when there was available work which he could secure and was able to perform. He could not decline proper medical treatment. He was under the general'bbligatioh to adopt WeasorLable 'measures to minimize his damages. Fairfield v. Salem, 213 Mass. 296. Driscoll’s Case, 243 Mass. 236. Snooks’s Case, 264 Mass. 92. The insurer cannot complain of conduct shown to have been reasonable.
The insurer did not raise before the board the question
The record does not show when the insurer entered into its contract of insurance with the employer. If the contract was made subsequently to the enactment of St. 1930, c. 181, which amended § 48 of G. L. c. 152 by extending the authority of the board to grant a lump sum award to the injured minor after he became of age (see Osborne’s Case, 257 Mass. 532), then the contract must be construed in the light of the statute. The insurer was free to enter into such a contract and having done so voluntarily it cannot now be heard to avoid the payment of a risk covered by its contract of insurance. Vance v. Burke, 267 Mass. 394. Caccavo v. Kearney, 286 Mass. 480. Fallon v. Mains, ante, 166. We do not intimate that, if the contract of insurance was made prior to St. 1930, c. 181, the insurer would have any standing to interpose these objections. The exercise of the constitutional grant to the Legislature to enact such laws as the public interest requires cannot be curbed by an agreement between private individuals. Freedom of contract simply means freedom from arbitrary and capricious action upon the part of the State or from employing means which cannot have any logical and definite relation to the promotion of the public health, the public safety, the public morals and the public welfare, and contractual rights are subordinate to the right of the State to safeguard the public interest through recourse to the police power. Salem v. Maynes, 123 Mass.
The employee had attended high school for two years and there was testimony that he was of more than average intelligence. The single member had seen him as a witness at three hearings and had an opportunity to judge his appearance, ability, aptitude for work and credibility. Gagnon’s Case, 228 Mass. 334. Wrobel v. General Accident Fire & Life Assurance Corp. Ltd. 288 Mass. 206. The evidence showed in considerable detail the wages earned by the employee from the time he first went to work in September, 1933, to the date of the last hearing on April 5, 1938. G. L. (Ter. Ed.) c. 152, § 48, provides that “The department, in the case of a minor who has received permanently disabling injuries, either partial or total, may, at any time before or after he attains his majority, provide that he be compensated in whole or in part by the payment of a lump sum, of an amount to be fixed by the department, not exceeding the amount provided by this chapter.” The sum awarded must be the present value of the total amount that the employee proves that he will sustain in loss of wages but not in excess of the maximum amount prescribed by c. 152. The determination of the impairment of earning capacity in the future frequently arises in actions of tort for personal injuries, and juries commonly decide the question. The record in the case at bar furnishes sufficient evidence to enable the board, in the exercise of sound judgment and common sense, to ascertain the amount of such loss. The burden was upon the employee to prove that
The employee’s request for the assessment upon the insurer of the entire costs of these proceedings in accordance with G. L. (Ter. Ed.) c. 152, § 14, is denied. Sylvia’s Case, 298 Mass. 27. Maguskas’s Case, 298 Mass. 80. Rich’s Case, 301 Mass. 545.
Decree affirmed.