242 Mass. 408 | Mass. | 1922
The employee while at work for the subscriber suffered an injury to his left eye which caused its removal, and the insurer paid specific compensation therefor, as well as compensation for total disability under an agreement of the parties filed and approved by the Industrial Accident Board. G. L. c. 152, §§ 6, 34, 36. The insurer however under § 12, asked for a review of the weekly payments, and the single member to whom the case had been referred found, on the evidence of the employee, the records of the hospital where he had been treated, and of the physician called by the insurer and two reports made by Dr. Cadis Phipps dated respectively November 29, 1920, and December 4, 1920, a duly qualified impartial physician appointed under § 9, that upon payment of the compensation due for disability at “the date of this finding . . . the employee will have been fully compensated for the effects of the injury . . . and . . . that all disability as a result of the injury has now ended.” A claim for review having been filed by the employee under § 10, the full board on January 18, 1921, granted his motion to recommit the case to the single member “for such further consideration in the way of additional proof of existing or new facts as may seem advisable and proper.” At the hearing on the recommittal “the following evidence is added to the record.” A continued report of the Massachusetts Homeopathic Hospital and the hospital’s physician’s orders showing that,the employee, who had received treatment, was suffering from “marked facial erysipelas, severe pain, tenderness, and high fever. Muco purulent, discharge from left eye. Eye ball left side, absent,” and three reports of Dr. Phipps. In the first report February 18, 1921, he states, “I filed a supplemental report . . . December 4, 1920, after having read the reports from the Mass. Charitable
■ “ The last hospital report from the Mass. Homeopathic Hospital which I received today will in no way alter my previous opinion as it described his condition subsequent to my last examination (it is dated Dec. 13, 1920).” On February 26, 1921, Dr. Phipps reported that he could “add nothing to my reports on Salvatore Emma concerning his illness (Erysipelas) suffered subsequent to my last examination without another physical examination.” On April 29, 1921, he “re-examined the . . . employee” and submitted his fifth report. While the preliminary details may be omitted, his conclusions which read as follows are important, “In addition to my previous opinion as expressed in the report of Dec. 4, 1920, I feel that this man has a much more serious condition; his heart is more enlarged (hypertrophied; his arterial tension has reached a dangerous level; and he apparently has had an acute exacerbation of his nephritis. It seems at least possible that not only has his attack of Erysipelas been largely responsible for this increase in his symptoms but also that the initial injury to his eye played a slight part in this disease by offering a portal of entry to the infection (apparently the Erysipelas began in the enucleated eyesocket). This last is largely problematical. I consider him absolutely incapacitated and in need of hospital treatment.” The single member in his decision filed May 14, 1921, states, “Upon all the evidence in the record, it seems apparent that this employee is totally incapacitated and I so find.
“In a decision made heretofore in this case, I reached the conclusion that the injury was not a causal factor in such disability as he had. As appears from the present record, further testimony bearing upon that point is now before me. The question is purely a medical one. Dr. Phipps, who has examined this man on two separate occasions, and has had before him all the records available as to the progress of his trouble, is of the opinion that the eye injury and the results following therefrom have had an exciting and exacerbating effect upon a condition which, prior to the injury, was apparently neither serious nor disabling, and which is now both. In making a finding, I am following his conclusions;
The insurer on May 19, 1921, filed a claim for review, and thereupon the case was before the board for final hearing and decision. The hearing after due notice took place June 9, 1921. A majority of the board found and ruled upon all the evidence that the employee was entitled to compensation in accordance with the decision of the single member. But the insurer having moved for permission to introduce further evidence, which motion was denied, its appeal from the decree affirming the order rests on the ground that as matter of law the board erred in refusing to receive the evidence. By § 10, “No party shall as of right be entitled to a second hearing upon questions of fact,” and the implication is that commonly there shall be no rehearing on the merits. Devine’s Case, 236 Mass. 588, 595. The insurer’s motion and the character of the evidence it sought to introduce does not appear in the record sent up by the board. It can only be inferred from the dissent of the minority member in which he says, “I am of the opinion that the motion to introduce further evidence, viz: — an impartial report filed by Dr. Phipps after my last decision was filed, should have been allowed. With this evidence upon the record, I am of the opinion that a finding for the insurer should then be made in line with my original finding.” We assume therefore that the evidence offered was limited to the introduction of Dr. Phipps’ supplemental and last report, which had been received and was known to the board. By § 9, the report of the duly qualified impartial physician “shall be admissible as evidence in any proceeding before the department or a member thereof; provided, that the employee and the insurer have seasonably been furnished with copies thereof.” It is not conclusive. It is agreed by the parties that this had been done by the board.
Ordered accordingly.
