3 Mass. App. Ct. 711 | Mass. App. Ct. | 1975
The employee was injured in 1964 and received total incapacity compensation from August 5, 1964, until June 15, 1965, and partial incapacity compensation thereafter until the statutory maximum was reached on April 1, 1971. His present claim for total and permanent incapacity compensation, which is based on the same injury and which is not supported by any substantial evidence of a change of condition since the earlier determination of partial incapacity (see Foley’s Case, 358 Mass. 230, 232-233 [1970], and McEwen’s Case, 2 Mass. App. Ct. 63, 66-68 [1974]), was rejected by the single member and the reviewing board on the ground that the employee “failed to sustain the burden of proving” that his disability is total. We interpret the stated ground as an assertion that the single member and the reviewing board were not persuaded that the disability is total. See Di Clavio’s Case, 293 Mass. 259, 262-263 (1936). The decree of the Superior Court dismissing the claim for compensation was correct, because the burden of proof was on the employee, and the evidence reported did not require a finding in his favor. Roney’s Case, 316 Mass. 732, 733-734 (1944). Schena’s Case, 329 Mass. 767 (1952). Pinto’s Case, 339 Mass. 776 (1959). See Locke, Workmen’s Compensation, § 502 (1968).
Decree affirmed.