Duprey's Case

219 Mass. 189 | Mass. | 1914

Crosby, J.

It is admitted that the employee Duprey was injured during the course of his employment and was totally incapacitated for all work from the date of his injuries on October 12,1912, until June 12, 1913, and that during this period he was paid by the insurer a weekly compensation, in accordance with the terms of the workmen’s compensation act (St. 1911, c. 751, Part II, § 9), at the rate of $7.50, which was a sum equal to one half his average weekly wages.

The committee of arbitration heard the parties and found that the total disability of Duprey ended on June 12, 1913, and that thereafter he was partially disabled for work. Having made these findings, the committee states that “It was agreed by Duprey . . . that two years’ partial disability, based on the estimated earning capacity of one half of the average weekly wage earned by Duprey at the time of the accident, would be just,” and made an award for partial disability therefor.

Upon review of the report of the committee of arbitration by the Industrial Accident Board, the latter, after two hearings before it and a report made by Dr. Washburn, “finds upon the above report and the evidence introduced at the hearing before the Industrial Accident Board that, as a result of the injury, the employee is totally incapacitated for all work except that which will allow him to be seated while engaged in its performance, and that the employee has endeavored to obtain and has been unable to find any work which the incapacity due to the injury will not prevent him from performing.” The board therefore finds that there was due the employee a weekly compensation of $7.50, based upon a total incapacity for work, from June 12, 1913.

1. The employee is not precluded by reason of the finding of the committee of arbitration that he agreed to a settlement on a basis of a partial disability, which would cease at the end of one hundred and four weeks from June 12, 1913, because that agreement was made after the committee had found that total disability should cease on June 12, 1913, to which finding, however, the employee did not assent, and did not waive his right to appeal from such finding.

2. The insurer did not put itself in a position to object to the consideration of the report of Dr. Washburn by the Industrial Accident Board. In order that questions as to the admissibility of evidence may be considered by this court on appeal, objection must be made before that board. Pigeon’s Case, 216 Mass. 51.

3. We are of opinion that the finding of total disability was warranted if we assume that all the evidence is reported, although this does not clearly appear.

The finding by the board that the employee is a man of failing physical powers and that probably he will be incapacitated for work in a few years, as a result of such physical weakness, independently of his injury, does not bar him from compensation under the act if his incapacity to work is the result of his injuries. Lee v. William Baird & Co., Limited, 1 B. W. C. C. 34.

The finding by the board that Duprey “is totally incapacitated for all work except that which will allow him to be seated while engaged in its performance” cannot be construed as a finding that because he is physically able to perform certain labor therefore he is not totally incapacitated for work. The further finding of the board that Duprey “has endeavored to obtain and has been unable to find any work which the incapacity due to the injury will not prevent him from performing” warranted a finding that he was totally incapacitated for work although he had a limited physical capacity to work and earn money.

This precise question was settled by Sullivan’s Case, 218 Mass. 141, recently decided by this court, which adopts the rule laid down by the English courts in construing the English workmen’s compensation act under a statute containing a provision similar to that in our statute.

The provision of our statute is that weekly compensation shall be paid while “the incapacity for work resulting from the injury is total.” St. 1911, c. 751, Part II, § 9.

This court, in commenting upon these words, said in Sullivan’s Case, 218 Mass. 141, 142: “The same words were used in an earlier English statute; and it was held by the Court of Appeal in Clark v. Gas Light & Coke Co. 21 T. L. R. 184, that the object of the act was to give compensation for an inability to earn wages, and that, if an injured employee after repeated efforts could not get an opportunity to earn wages, a finding that his earning power was gone and therefore that he was under an 'incapacity for work’ was warranted, although he had a physical capacity to work and earn money.” In Ball v. William Hunt & Sons, Limited, 5 B. W. C. C. 459, 463, it was said by Lord Macnaghten: “Now 'incapacity for work,’ as the phrase is used in the schedule, seems to me to be a compendious expression meaning no more than inability to earn wages, or full wages as the case may be, at the work in which the injured workman was employed at the time of the accident.” McDonald v. Wilson’s & Clyde Coal Co., Limited, 5 B. W. C. C. 478. Gillen’s Case, 215 Mass. 96.

The question whether the board should have found that there is a total disability for the whole period allowed by the act, is not raised by the record and need not be considered.

It follows that the finding of the Industrial Accident Board that the employee was totally incapacitated for work was warranted.

Decree affirmed.