283 Mass. 23 | Mass. | 1933
This is a workmen’s compensation case. G. L. (Ter. Ed.) c. 152. The employee while working for this employer received an injury on August 2, 1927, for which he was paid compensation until he returned to work December 5, 1927, and another injury on February 8, 1930, for which he was paid compensation to March 23, 1930, and a lump sum of $500. The employee now claims compensation for an alleged injury received in October, 1931. The single member found as follows: “this employee received a personal injury arising out of and in the course of his employment on October 1, 1931, when he was lifting apples. He had a preexisting weak condition in his back, and had received compensation on two prior occasions. He continued to work until December 31, 1931, when he was laid off.” The single member found further that “this was a new injury,” and awarded compensation for partial incapacity from-December 31, 1931. The reviewing board affirmed and adopted the findings and decision of the single member. The Superior Court entered a decree in accordance therewith, and the insurer appealed.
There was medical testimony that the employee “is not able to do heavy work,” and “has a permanent, partial disability, possibly fifty per cent,” but there was no evidence, apart from the testimony of the employee, that this condition was caused or aggravated by a personal injury received in October, 1931.
The substance of the employee’s account of the circumstances of his alleged injury in October, 1931, appears in the following extracts from his testimony as set forth in the record. “On August 2, 1927, while driving a tractor, the tractor overturned on him, catching him in the back, groin and hips. . . . He was out-of work about seventeen weeks. He was able to do light work and he wanted to go back. The Wayside Inn . . . gave him light work. . . . He did not do any heavy work similar to what he had done prior to August 2. . . . Asked what happens to him when he does heavy work, the witness replied, he gets lamed up
The testimony of the employee did not warrant a finding that he received a personal injury in October, 1931, which affected his capacity for work after December 31, 1931. It is at best doubtful whether it could have been found that the employee’s lameness and more severe pain while employed in lifting apples amounted to a personal injury or was the result of a personal injury arising out of that employment. See Sullivan’s Case, 265 Mass. 497, 499; Burns’s Case, 266 Mass. 516; Doyle’s Case, 269 Mass. 310. But in any event there is no evidence that the employee’s lameness or increased, pain continued for any length of time after he ceased to do that work or that his incapacity after December 31, 1931, was in any degree due to that work. So far as appears the lameness and increased pain were incidents of that work without lasting effect upon the employee’s physical condition. The burden rested upon the employee of showing that the occurrences in October, 1931, were at least a contributing cause of his incapacity after December 31, 1931. Panagotopulos’s Case, 276 Mass. 600, 605, 607. This burden has not been sustained. It is unnecessary to consider other grounds of defence argued by the insurer.
Decree reversed.
Decree to be entered for the insurer.