317 Mass. 617 | Mass. | 1945
The employee, a butcher, while taking meat out of a barrel on September 28, 1937, received a scratch on the back of his right hand which became infected, necessitated three operations at a hospital where he was confined for several months, resulted in the amputation of a large part of his right hand, and rendered his hand permanently incapable of use. During the last operation, he suffered a pulmonary embolism or a coronary thrombosis and became critically ill. Upon the application of the insurer to discontinue compensation, a single member of the Industrial Accident Board found, on March 5, 1941, that the employee was totally disabled; that his total disability was in part produced by the fact that he had been totally deprived of the use of his right hand and in part due to heart disease; that he had a heart disease which existed at the time of his injury, but that the surgical operations required in the treatment of his injury “precipitated an attack of symptoms due to the disease, from which symptoms he is not as yet free and which in themselves are totally disabling.” He ordered the continuance of payments at the rate fixed for total incapacity. Neither party sought a review of this decision.
The insurer made payments amounting to $4,500, the maximum amount provided by G. L. (Ter. Ed.) c. 152,
The single member found that the employee as a result of the original injury has lost the use of his right hand; that in addition he has a heart condition that is disabling to some degree; and that the combination of the injury and the heart condition renders the employee totally disabled. He found that the heart condition from which the employee is suffering was not causally related to the injury; that apart from the heart condition, the employee for all practical purposes was a one-handed man in the labor market, but that he was not thereby totally and permanently disabled. He denied, on December 18, 1942, the claim for further compensation. A reviewing board adopted the findings of the single member and dismissed the claim. The employee appealed from a final decree entered in the Superior Court dismissing his claim.
The employee contends that the finding made in the earlier proceeding that the surgical operations necessitated by the injury had brought on an attack of the existing heart disease was equivalent to a finding that there was a causal connection between the injury and the disease, and that that finding from which no review was taken settled the existence of this relationship. It is true that the liability of the insurer when once finally determined cannot be fur
The determination of the cause and extent of the then existing incapacity of the employee was the only question presented for decision at the first proceeding. That the loss of the use of the hand was permanent was not disputed. The duration of his disability due to his general condition was not in issue and was not decided. The length of time that the .effect of the surgical, operations might be reflected in the condition of the heart was not passed upon. The finding went no farther than to establish that the operations precipitated an attack of the symptoms of heart disease “from which symptoms he is not as yet free.’’ There is nothing here suggestive of any lasting injury to the heart. The flare-up of the heart condition had not then subsided, and there is no intimation in any finding made in the first proceeding that the heart condition in so far as it was affected by the injury would persist indefinitely. Hunnewell’s Case, 220 Mass. 351. Weir’s Case, 252 Mass. 236. Hanson’s Case, 264 Mass. 300. Panago-topulos’s Case, 276 Mass. 600.
The question of the permanency of the employee’s disability did not arise until the second proceeding. The fact that the heart condition had previously been accentuated by the injury and had contributed to the total disability from which he was found to have suffered was not an adjudication that, whatever the heart condition might be in subsequent years, it must be deemed due to the injury. It was the duty of the single member and the reviewing board
It is next contended that the single member was in error in stating that the testimony of the employee’s physician
It is finally urged that the loss of the use of his right hand by one whose only occupation was that of a butcher renders him totally and permanently disabled and entitles him to further payment under G. L. (Ter. Ed.) c. 152, § 34A, as inserted by St. 1935, c. 364. This section, after designating certain injuries, of which the loss of a hand is not one, provides, in the absence of conclusive proof to the contrary, that such injuries shall be considered to constitute permanent total disability, and that "In all other cases permanent total disability shall be determined in accordance with the facts, and proof thereof shall be by weight of the evidence.” Disability due to a heart disease, having been found not to have a causal connection with the injury, cannot be considered in determining whether the condition of his hand has rendered him totally and permanently disabled. There was testimony that the employee was able to do such work as a one-handed man could do. He did not seek employment as apparently he believed that the condition of his heart would prevent him from working. But even if this were so, there was evidence that he could do any type of work, so far as his heart condition was concerned, except work that required lifting or heavy labor. The fact that a man has lost his right hand warrants a conclusion that he is prevented from performing many types of work. Morrell’s Case, 278 Mass. 485. Hurwitz’s Case, 280 Mass. 477. Manley’s Case, 282 Mass. 38. But whether the loss of a hand results in any particular case in total and permanent disability is usually a question of fact. The phraseology of the statute, G. L. (Ter. Ed.) c. 152, § 34A, in dealing with an injury of this character strongly indi
The statement of the single member that “I find and rule” (a common formula which “has been interpreted so as to require us to support the decision if warranted upon the evidence,” Flesher v. Handler, 303 Mass. 482, 483, and imports “that such conclusion is permissible as matter of law and is found as matter of fact,” Roney’s Case, 316 Mass. 732, 734) that the disability is not total and permanent was a finding of fact and not a ruling of law. This finding is not lacking in support from the testimony and in accordance with the general principle cannot be reversed. McGowan’s Case, 288 Mass. 441. Mozetski’s Case, 299 Mass. 370.
Decree affirmed.