242 Mass. 489 | Mass. | 1922
The employee received injuries arising out of and in the course of his employment as blacksmith on May 14, 1917. He was paid compensation under the workmen’s compensation act until December 1, 1917, when he returned to work with the same employer and remained until July, 1921," earning as much or more than before. Consequently his ability to earn wages equivalent to those earned before the injury was not during that period affected by his injury, such differences as there may have been, either by increase or decrease, having been due to industrial conditions and not to his injury. In July, 1921, he lost his position because of industrial conditions. Since then he has been able to get work elsewhere at his trade at less wages. It has been found by the Industrial Accident Board that since his discharge his physical disability arising out of the injury has adversely affected his ability to earn wages, and that he is able to do work in his regular calling of blacksmith only within restricted limits.
The contention urged by the insurer is that the facts here disclosed do not warrant the renewal of compensation.
It is provided by St. 1911, c. 751, Part II, § 10, as amended (see now G. L. c. 152, § 35), that “While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee a weekly compensation equal to sixty-six and two-thirds per cent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter” with limitations not now material. This means that under the circumstances here disclosed, when the impairment of physical strength or energy directly attributable to the injury reduces the wages below the average weekly wages before the injury, then there is a right to compensation. This is true even though for a period the employee has suffered no loss in wages. The statute affords compensation for diminished capacity to earn wages attributable to the injury as compared with average weekly wages actually earned before the injury. If for any reason the employee suffers no impairment of wage earning capacity when compared with his average weekly wages prior to the injury, then no compensation is due under the act. While it is true that the employee in common with others must bear the loss resulting from business depression, this does not mean that when the earning capacity is reduced by reason of the injury, there may not be recovery even though business conditions may have become contemporaneously less favorable. It well may be that the reason why the employee suffered no loss in wages from December, 1917, until 1921 was the abnormal conditions produced according to common knowledge by the great war. Opinion of the Justices, 231 Mass. 603, 610. Apparently this is an instance where exceptionally high wages and unusually favorable industrial conditions as to labor enabled the employee to avoid an impairment of earning capacity which otherwise the physical injury would inevitably have caused. It is only the recession of those
The circumstance that nearly four years intervened between the return to work and the appearance of reduced ability to earn resulting directly from the injury is no bar to the recovery of compensation. That is apparent from the history of this section of the act. It was provided in Part II, § 10, as originally enacted, that the period covered by the payment of partial compensation should “in no case ... be greater than three hundred weeks from the date of the injury.” By St. 1914, c. 708, § 5, this period was extended to five hundred weeks from the time of the injury. By St. 1919, c. 205, that express time limit was removed altogether; and G. L. c. 152, § 35, is to the same effect. The force of this change is accentuated by the time limit of five hundred weeks in G. L. c. 152, § 34, as to payments of compensation for total incapacity. The present claim is well within the limit of five hundred weeks from the date of the injury fixed by the statute in force at the time of the injury to the employee. The circumstances here disclosed do not prevent renewal of payment for partial incapacity.
It cannot be held that this proceeding has been defended or this appeal prosecuted “without reasonable ground.” G. L. c. 152, § 14. A fair question of law was presented on the record. The employee’s motion for costs must be denied. Meley’s Case, 219 Mass. 136.
The decree entered in the Superior Court was that “the decision of the Industrial Accident Board under date of April 27th, 1922, be affirmed.” That is wrong. The Industrial Accident Board is not a court, but an administrative tribunal. Levangie’s Case, 228 Mass. 213. The Industrial Accident Board cannot enforce its own orders. The workmen’s compensation act of necessity provides that the decisions of the board can be enforced by appropriate proceedings in court. St. 1911, c. 751, Part III, § 11 (see now G. L. c. 152, § 11). It is only in that way that such decisions can be enforced. McNicol’s Case, 215 Mass. 497, 502.
Practice under the workmen’s compensation act conforms in the main to that prevailing in equity. Gould’s Case, 215 Mass. 480. Pigeon’s Case, 216 Mass. 51. A final decree in equity must state in plain figures the amount which a party must pay in the way both of debt or damages and costs, as well as every other matter adjudicated. “No decree is a final one, which leaves anything _ open to be decided by the court.” Forbes v. Tuckerman, 115 Mass. 115, 119. Stevens v. Rockport Granite Co. 216 Mass. 486, 494. A final decree “provides for all the contingencies which may arise and leaves no necessity for any further order of the court to give to all the parties the entire benefit of the decision.” Gerrish v. Black, 109 Mass. 474, 477. Shannon v. Shepard Manuf. Co. Inc. 230 Mass. 224, 229. A final decree of the Superior Court under the workmen’s compensation act should follow the forms of decrees in equity. Cowden’s Case, 225 Mass. 66, 68.
Weekly payments to be made in the future hardly can be disposed of finally by a present decree. This is especially true in cases of this nature because the act contains provision for reexamination by the Industrial Accident Board as to weekly payments. G. L. c. 152, § 12. That in the nature of things must be done from time to time as the weeks come. The order for the rate of weekly payment to continue subject to the provisions of the act is a proper part of the decree. The right thus can be declared. The fact of partial incapacity under the act and the payment of the gross sum found already to be due can be disposed of finally. Churchill v. Churchill, 239 Mass. 443.
Decree is to be entered in this form: “This case came on to be heard at this sitting and was argued by counsel, and thereupon
This general form is subject to such modification in the Superior Court with appropriate recitals, as the state of the payments actually made by the insurer, if any, prior to its entry may require. See G. L. c. 152, § 17. Whether the decree shall order execution to issue in common form, G. L. c. 214, § 41, or omit such provision, White v. White, 233 Mass. 39, 44, need not be decided.
The form of the final decree is subject to this further possible contingency. After the case was submitted on briefs and considered by this court the insurer prayed for leave to present a motion to this court asking that the case be “remanded to the Superior Court with instructions that it be returned to the Industrial Accident Board so that it [[the insurer] may show that the testimony of the father and son was misleading and false” on the ground that evidence to that effect has been newly discovered. Leave to file such motion in this court is denied. It may appropriately be presented to the Superior Court before the entry of final decree. Commonwealth v. Scott, 123 Mass. 418. West v. Platt, 124 Mass. 353. Day v. Mills, 213 Mass. 585, 587. Noyes v. Noyes, 224 Mass. 125, 135. The Superior Court has power to remand a case to the Industrial Accident Board for further hear-ing when justice requires it. Nelson’s Case, 217 Mass. 467. Devine’s Case, 236 Mass. 588, 595. Chisholm’s Case, 238 Mass. 412. This power includes that to order a rehearing (the term properly applicable to the proposed motion) before the Industrial Accident Board on the ground of newly discovered evidence,
Ordered accordingly.
