222 Mass. 98 | Mass. | 1915
This case came before the full court at an earlier sitting. The record then was incomplete. There had been a hearing before an arbitration committee and also before the Industrial Accident Board. But it did not appear whether the latter hearing was upon additional evidence or simply upon the report of the arbitration committee. In other respects the record was not plain. Upon motion then made a rescript was sent in this form: “Decree reversed, not on its merits, but to enable the insurer to move in the Superior Court on the ground of diminution of the record that the cause be recommitted to the Industrial Accident Board for correction and amplification of the record.” Thereafter, the Superior Court acted and remanded the case in the terms of the rescript by agreement of counsel. The Industrial Accident Board then proceeded to hold a further hearing and “revising the report of the committee of arbitration and the findings and decision of the Industrial Accident Board on review, substitutes therefor the following: No new evidence was presented at the hearing on review, the decision of the board being based upon an examination of the record of the evidence presented to the committee of arbitration.” Then follows a summary of the material evidence and a transcript of the testimony of the employee. The last quoted sentence was in accordance with the rescript. It supplied omis
The motion of the insurer as to the additions to be made to the record presented to the board was granted in substance though not in form. It was the duty of the board to correct and complete its record fully so as to conform to the facts. It was proper, if not necessary, for the board to set out the evidence or the substance . of it.
The finding of the board in effect was that the employee received lead poisoning or plumbism as a personal injury arising out of and in the course of his employment. The evidence was conflicting as to the injury from which he suffered. But as there was testimony to the effect that he had lead poisoning, the finding upon this point must stand. Pigeon’s Case, 216 Mass. 51.
The point of difficulty is whether the injury arose out of and in the course of his employment. There must be some evidence to support the finding that it did so arise. Sponatski’s Case, 220 Mass. 526.
The evidence that he suffered from lead poisoning had no tendency to show the source of that poison. That must be established by other evidence. There was testimony that the employee had worked as a printer for the employer for about fifteen years as “a ‘bank’ man, an ‘ad’ man, and as a linotype opera
There is nothing in this evidence or elsewhere in the record to show what was the composition of the type upon.which he worked. Nor is there anything to show that lead fumes or lead dust or any dangerous compound of lead is given off in a printing office or in the handling of type similar to that engaged in by the employee to such an extent and in such form as to be likely to be taken into the human system and to cause plumbism. While it is quite possible that such may be the fact we do not know it, and in our opinion it cannot be regarded as a matter of common knowledge. The record is bare of any evidence to show that the lead poisoning from which the employee suffered was due to his employment or that it did not come from other sources. The decree, therefore, must be reversed. We are not satisfied upon the record that the case has been fully tried upon this point. It is provided in the workmen’s compensation act, St. 1911, c. 751, Part III, § 10, as amended by St. 1912, c. 571, § 13, that “No party shall as a matter of right be entitled to a second hearing upon any question of fact.” This means that the introduction of new evidence is a matter of discretion ordinarily. Commonly there should not be a rehearing. Where there has been a full trial a final decree should be entered. There may have been misconception on the part of the arbitration committee, or the Industrial Accident Board, as to their power to draw inferences from matters or base conclusions upon information outside the evidence, or for some other reason the employee may have failed to present his real case. The present case appears to be an instance where, if the introduction of additional evidence is desired by the employee, there should be a further hearing. The case is to be recommitted to the Industrial Accident Board, where the employee may move for a hearing and for
So ordered.