Bergeron's Case

Jan 4, 1923
Reporters:
Before:
Courcy
De Courcy, J.

The Industrial Accident Board found that Alfred Bergeron, an employee of the Hurley estate, received a personal injury arising out of and in the course of his employment; and that death resulted therefrom on July 2, 1920. No written notice of the injury, as required by § 15, Part II, of the workmen’s compensation act (now G. L. c. 152, § 41), was given by the widow. After the case had been recommitted for further hearing on the question of notice or knowledge of the injury, the board found that the date of the injury was June 9,1920; and that *368the employers had knowledge of the injury, through their recognized agent, on June 10, 1920. The main question now argued by the insurer is whether this finding as to the date of the injury was warranted.

Section 18 of the act provided: “Want of notice shall not be a bar to proceedings under this act, if it be shown that the association, subscriber, or agent had knowledge of the injury.” See now G. L. c. 152, § 44. Barry’s Case, 240 Mass. 409. The employee worked as a painter for the Hurley estate for approximately eight years. He handled and used lead in mixing the paints. There was evidence that when he consulted his family physician in November, 1919, complaining of his throat, the doctor noticed the “lead line” on Bergeron’s gums, gave him iodide of potassium treatment for lead poisoning, and told him he should be careful. There was further evidence from the dentist and the widow that Bergeron showed some symptoms of lead poisoning two years or more before he died. According to the testimony of the experts “the assimilation of lead into the system is usually a very slow thing;” and “It is a slow, cumulative process and ultimately a sufficient amount is in the body to produce definite effects.” The employee worked steadily until he went on a vacation with his family in July, 1919; and after his return worked daily until June 9, 1920. The finding of the board was that “the date of injury in the Bergeron case, was not the time in November, 1919, when he was first treated for lead poisoning, but was the time when the accumulated effects of the lead poisoning, due to his employment by the subscribers, first incapacitated him for work on June 9, 1920.” There was evidence to warrant the board in so finding. It appears that the employee was able to perform and did perform his regular work daily until and including June 9. Then the disease had progressed to such a serious stage that his physician told him his illness was brought about by lead poisoning and he could not paint any more. Johnson’s Case, 217 Mass. 388. O’Donnell’s Case, 237 Mass. 164.

On June 10, knowledge of the injury came to Dempsey, who was the general agent and superintendent of the Hurley estate, and who employed and directed the work of Bergeron. When the employee failed to report for work on that morning, Dempsey went to Bergeron’s house; and was told by him what the doctor *369had said, namely, that his illness “was brought about by lead poisoning and he would have to discontinue painting and take up some other line of business and rest for three months.” Plainly it could be found that the subscribers had knowledge of the injury “as soon as practicable after the happening thereof.” St. 1911, c. 751, Part II, § 15. Bloom’s Case, 222 Mass. 434. Brown’s Case, 228 Mass. 31. Walkden’s Case, 237 Mass. 115.

The question whether the insurer was prejudiced by want of notice, does not arise under the second finding of the board member, which was affirmed by the Industrial Accident Board.

Decree affirmed.