244 Mass. 346 | Mass. | 1923
The claimant whose weekly wages were $16, re-ceived an injury arising out of and in the course of her employment on May 29, 1919, for which compensation was paid to the date of the hearing under proceedings begun by the insurer to determine whether the disability arising from her injury had ceased. The board member on conflicting evidence was warranted in finding that her inability to follow her usual employment resulted from, and was causally connected with her injury, and ordered the payments continued subject to the provisions of the statute. The insurer having filed a claim for review, a hearing was had before the Industrial Accident Board on the report of the board member which contained all the material evidence. It is undisputed that the employee had sufficiently recovered to be able “to do certain forms of light work, if available.” But no evidence had been introduced before the board member that she had sought such employment but had been unable to obtain it. The board however ruled that the burden of proof was “on the insurer to show that such work is available to the employee.” The correctness of this ruling is the only question presented for our decision. If the claimant, while working for the company under a contract at common law had been unlawfully discharged, and had brought suit claiming damages on the ground that she had been unable to obtain regular work, the burden of proof would have rested on her. Lopes v. Connolly, 210 Mass. 487, 494. It was decided in Pigeon’s Case, 216 Mass. 51, that the findings of the Industrial Accident Board ■stand on the same footing as the findings of a judge sitting without a jury, and are not to be set aside if there was any evidence upon which they could have been made. We discover no substantial difference in this respect as to the rules of evidence whether the trial is before a judge, or before the board. Diaz’s Case, 217 Mass. 36. Savage’s Case, 222 Mass. 205. Smith v. Hill, 232 Mass. 188. It has uniformly been held by this court that the burden of proof remains throughout the trial on the plaintiff to establish his case on all the evidence where liability is denied, or the amount to be recovered is in issue. Carroll v. Boston Elevated Railway, 200 Mass. 527, 536. Bigelow Carpet Co. v. Wiggin, 209
Ordered accordingly.