246 Mass. 513 | Mass. | 1923
In this proceeding under the workmen’s compensation act, Frank Fountaine, an employee of Farr Alpaca Company, alleges that on October 21, 1921, he received personal injury arising out of and in the course of his employment. His claim was heard by a single member of the Industrial Accident Board who, after hearing the evidence, twice found that the injury did not result from the
The appellant urges that on the record, the decision of the board was not a justifiable review of the decision of the single member, in spite of the conceded existence of “ some evidence ” to support that conclusion. It asserts that part of the evidence in behalf of the employee, if believed, warranted only a finding that the injury was received in the course of and out of the employment, that other evidence if believed warranted only a finding that the injury arose out of a fall “ due to . . . [an] internal state of health; ” that the uncontroverted evidence as to other facts did not warrant a finding for the employee; and that the testimony of each witness, “ when considered by itself, contained no self-discrediting features such as inconsistencies or improbabilities.” The insurer’s contention is well stated in its brief: “ The requirements of a£ review ’ make it necessary that the board, in reversing the finding of the single member solely on the ground of a differing estimate of the credibility of the same testimony, and where the rejected testimony is neither self-contradictory nor intrinsically improbable, shall have had before it the witnesses in question, or, at any rate, the participation in its deliberations in review of the single member who heard such testimony and saw the witnesses.” It further submits that such a finding of reversal “must of
The board did not follow the finding of the single member as to the credibility of the evidence of the employee; it did not hear testimony of witnesses under the power conferred by G. L. c. 152, § 10; and the single member was not assigned to sit in review.
Inasmuch as the workmen’s compensation act creates liability and gives relief only where there is a voluntary agreement to be bound thereby, it does not impair fundamental rights. Opinion of the Justices, 209 Mass. 607. Procedural provisions do not form a part of the contract of employment and are subject to legislative control. Devine’s Case, 236 Mass. 588. The decision in this case must be based upon the construction of the statutory provisions creating and defining the rights of employee and employer and the liability of the insurer.
Under the statute as originally enacted, if the insurer and the employee did not reach an agreement in regard to compensation, upon notice of either, the Industrial Accident Board directed the formation of a committee of arbitration consisting of three persons, one a member of the board, and the others to be “ named, respectively, by the two parties.” The decision of the committee was enforceable unless a claim for review was filed, whereupon the board heard the parties. St. 1911, c. 751, Part III, §§ 5, 6, 7, 10. The next year (St. 1912, c. 571, §§ 12, 13) the committee on arbitration was required to file with the board with its decision “ a statement of the evidence submitted before it, its findings of fact, rulings of law and any other matters pertinent to questions arising before it; ” and in case of review the provision was made that the board “ shall hear the parties and may hear evidence in regard to any or all matters pertinent thereto and may revise the decision of the committee in whole or in part, or may refer the matter back to the committee for further find
A proceeding before the reviewing board is not like that considered in Swan v. Justices of the Superior Court, 222 Mass. 542. There the statute (R. L. c. 100, § 4, as amended by St. 1912, § 389) provided for a “ review of the charges, of the evidence submitted thereunder, and of the findings thereon.” Here power is given to “ revise ” the decision. Other differences need not be noted. Neither is the statutory authority limited as in cases where this court in actions at law considers the weight to be given to the findings of a trial judge; nor as under the rule in equity. See Moss v. Old Colony Trust Co. ante, 139, and cases there collected at pages 143, 144. The proceeding is different in its scope from either of those last referred to, although procedure under the act “ conforms in the main to that prevailing in equity.” Johnson’s Case, 242 Mass. 489, 494. The importance of
It follows that the decree of the Superior Court must be affirmed, and it is
Ordered accordingly.