Joos's Case

267 Mass. 322 | Mass. | 1929

Carroll, J.

The employee, on August 9, 1926, “lost his left forearm and left hand by reason of his left hand being caught” in a machine on which he was working. He was awarded specific compensation for the loss of his hand and also additional compensation for his diminished capacity to labor. On November 3,1928, the Industrial Accident Board found that the employee was a minor, born November 18, 1907; that he had an earning capacity in the labor market of $10 a week; and awarded him a lump sum settlement of $2,182.57. The insurer appealed.

There is nothing in the record to show that the insurer had notice of the proceedings at which the lump sum award was made, or that it had an opportunity to be heard. The statute (G. L. c. 152, § 48) provides that when weekly payments have been continued for not less than six months, in unusual cases where the parties agree and the department considers it for the best interests of the employee or his dependents, it may award a lump sum. In the case of a minor the department may at any time direct that he be compensated by a lump sum payment. See Osborne’s Case, 257 Mass. 532; When the board passed the order for the lump sum payment the employee was a minor and under the statute the board could act without his consent; but it could not act without a hearing and notice to the parties interested. The employee and the insurer had the right to be heard and the board could not proceed under this section of the statute without giving to all parties a full opportunity to be present and to offer their reasons for or against the making of the lump sum payment. The allowance of such payment involves careful consideration; it should be allowed only when all the circumstances have been examined and it is considered for the best interests of the employee. McCarthy’s Case, 226 Mass. 444.

There was no error in finding that the employee was a minor at the time the award was made; there was evidence to support this finding. The testimony of the employee was competent to show his age. Commonwealth v. Hollis, 170 Mass. 433, 435. See Osborne’s Case, supra. The board was justified in its findings that the employee sustained a permanently disabling injury and that his earning capacity was $10 a week. Jameson’s Case, 254 Mass. 371. O’Reilly’s Case, 265 Mass. 456.

For the reason that the record does not show that the parties interested had an opportunity to appear and be heard at the hearing when the lump sum award was made, the decree is to be reversed and the case recommitted to the Industrial Accident Board.

So ordered.