240 Mass. 409 | Mass. | 1922
The employee was injured on June 11, 1920. He was paid compensation to November 6, 1920, when it was discontinued by order of a member of the Industrial Accident Board. At the hearing before another member of the board, it was found that the employee’s earning capacity was reduced, and compensation for partial incapacity was awarded him from November 6, 1920, to March 16, 1921, to continue in accordance with the provisions of the act'. The Industrial Accident Board affirmed and adopted these findings, and a decree was entered in the Superior Court -in favor of the employee, from which the insurer appealed. No claim for compensation was filed until March 16, 1921.
The refusal of the member to grant a continuance because of the absence of the witness presents no question of law. As was said in the recent case of Noble v. Mead-Moirison Manuf. Co. 237 Mass. 5, at page 16: “It was for the court to determine whether there had been due diligence in trying to secure the attendance of the witnesses or to procure their depositions or whether for any reason justice required a postponement. . . . Ordinarily the granting of a continuance is for the presiding judge alone.” This principle is applicable to the case at bar. The record does not show that any attempt was made to take the deposition of the absent witness, or that the employee refused to admit that the witness would testify, as stated by the insurer; and there is nothing to indicate abuse of discretion in refusing to delay the hearing.
The single member found that the insurer made the usual written agreement to pay compensation, and thereafter paid in accordance with the agreement, until payment was discontinued without prejudice to a hearing on the merits; that on March 16, 1921, the date of the hearing, when the insurer claimed that the employee had not filed a claim for compensation, the employee then filed the claim; and that the failure to file the claim earlier was due to mistake or other reasonable cause, in that the employee believed that the insurer would pay compensation for any incapacity resulting from the injury.
A claim for compensation must be filed in accordance with the statute. It was held in Levangie’s Case, 228 Mass. 213, that full performance of the conditions of the act is an essential prerequisite to the jurisdiction of the board, and its authority cannot be enlarged or diminished by express consent or waived by acts
By St. 1920, c. 223, § 2, it was enacted that failure to make the claim for compensation shall not be a bar to the proceedings if it is found that it was occasioned by mistake or other reasonable cause, or if it is found that the insurer was not prejudiced by the delay. This statute was approved on March 30, 1920, and is applicable to the pending proceeding. See Devine’s Case, 236 Mass. 588, 594, and Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1, 3. There was, however, no finding by the single member or by the board, that the insurer was not prejudiced by the delay of the employee in failing to file the claim for compensation. This question should be decided; and if it is found that the insurer was not prejudiced because of the delay, the employee should not be deprived of the compensation due him.
The result is that the decree must be reversed, and the case recommitted to the Industrial Accident Board for further hearing on the question, whether the insurer was prejudiced by the delay in filing the claim. At this hearing further evidence may be introduced by both parties.
So ordered.