350 Mass. 305 | Mass. | 1966
This is a claim by the widow of Roland B. Larrabee for workmen’s compensation benefits for herself and minor children. The findings and decision of the single member were adopted by the reviewing board. In the Superior Court a final decree was entered for the claimant. We consider also a companion case involving the insurer’s appeal from a decree of the single justice dismissing a petition brought by the insurer for suspension of the decree of the Superior Court pending the insurer’s appeal to this court from the Superior Court decree.
The claim was filed on May 3, 1958, alleging that on April 9, 1958, the employee died from “ [ijnhalation of noxious, deleterious, and harmful fumes and dust from machines and in the atmosphere of working area of . . . [his employer’s] factory in which there were inadequate ventilation facilities.” The single member heard evidence on this claim in a series of nine hearings held over a period in excess of four years. The last hearing was held on July 23, 1963. The single member’s decision was filed May 27,1964. Having heard the parties on July 27, 1964, the reviewing board filed its findings and decision on January 25, 1965. The final decree of the Superior Court was entered on March 26, 1965. The litigation of this matter has consumed an unconscionable amount of time and, simply on that account, has worked an injustice upon both parties.
We summarize the findings of the single member. It was agreed that the claimant was the dependent widow of the dece^ed~arrd*1BlW(Eefe~wereJhree dependent minor’
An autopsy was performed by a Dr. William 0. Swatek, who gave his opinion that the cause of the employee’s death was an acute liver insufficiency which developed between sixteen hours and four days before death. On the assumption that the deceased had inhaled certain fumes at work, Dr. Swatek gave further opinion that “there was direct causal relation between the inhalation of chlorothene fumes in the course of his employment and the liver damage . . . and stated his reasons for his opinions.” An internist called to testify for the claimant on the assumption that toxic fumes had been inhaled “also gave opinion that there was causal relation between the sudden dysfunction of the employee’s liver, which caused his death, and his employment, ’ ’ and stated his reasons therefor. The employer produced two medical witnesses who testified to the contrary, stating that “no relation was established between the employee’s death and Ms activities and the conditions of his employment as likewise described to them.” Evidence was produced to the effect that the stock, softeners, accelerators, and lacquers used were all “non-toxic and within the limits prescribed by State law.” The single member found this testimony “not final and conclusive on the issue of the causal relationship of the employee’s death or as to whether or not they were toxic to this particular employee. ’ ’ He noted that the employee, as feed man, was “most exposed to the inhalation of whatever fumes emanated from the rubber and plasticizers,” and that he carried the materials “directly under Ms nose during his working hours . . . and perforce inhaled whatever odors and fumes emanated from the batches . . . carried ...” (emphasis sup
The insurer moved before the reviewing board to strike certain testimony from the record, to renew objections and exceptions to evidence, and to recommit the matter in accordance with certain offers of proof. The decision of the reviewing board sustained the single member but altered his order slightly to make it conform to G-. L. c. 152, § 31. The board ordered that the $25 a week compensation being paid to the widow should stop on January 24, 1963, when the maximum amount of $10,000 had been paid to her. In the Superior Court the insurer moved that the case be recommitted to the board for various reasons, specifically for the taking of evidence on “whether the claimant has sustained the burden of proving what was the cause of the alleged liver damage . . .The motion was denied.
The appeal from the final decree did not stay the enforcement of that decree and there followed the petition to the single justice under GL L. c. 152, § 17, seeking suspension of the enforcement of the decree, alleging that no inequity or hardship would be caused by such suspension, that the appeal involved substantial questions of law, and that “if the decision of the Supreme Judicial Court is in favor of the Insurer, it will be extremely difficult, if not impossible, for the Insurer to recover the amount of payments which will have been paid to the claimant . . ..” The petition for the suspension was dismissed. This was in the discretion of the single justice and there was no error.
While the testimony was in conflict as to the cause of
There was conflicting evidence also from the medical experts on whether the damage found by the single member to have occurred to the employee’s liver was by inhalation of chemicals rather than by viral or bacterial action. Without detailing this conflicting evidence it may be said that here, again, was a question for the single member’s judgment and he chose to believe the medical testimony which indicated a chemical cause for the liver insufficiency.
Dr. Swatek testified that, on the assumption that the employee had inhaled fumes that contained chlorothene, “there is a direct causal relationship between the inhalation of the fumes containing the chlorothene and the destructive process in the liver. . . . [M] any of the chlorinated drugs are capable of producing this destructive type of lesion in the liver.” Dr. Swatek said he could tell from the alteration of the liver tissues what type of chemicals had been inhaled. Dr. Swatek’s opinion was admitted subject to later showing by the claimant that the employee actually had inhaled chlorothene or some other “chlorinated drugs.”
The insurer’s principal and proper objection is that the single member and the reviewing board failed to designate what chlorinated chemical, if any, was inhaled and from what source it came. There having been no finding that one or several identified chemicals are at fault, the insurer is denied the opportunity to test a crucial basis of the decision for the claimant. This handicap for the insurer is made the more serious in this case by the single member’s having apparently ignored in his findings a large portion
We note other errors in the decision of the single member. He erroneously found that lacquers were used on plastics in the warm-up mill, made mistaken reference to dates which were of considerable importance in the progress of this employee toward his death, and indicated further that as feed man the employee carried stock from the warm-up mill to the feed mill, when it was incontrovertible that such work was actually performed by the warm-up man. These errors bear upon the amount and nature of the employee’s exposure to the fumes in the area where he worked and are to be rectified on recommittal.
The decree of the single justice denying suspension of the decree of the Superior Court lay in his discretion and there was no error. The insurer should have complied with the decree of the single justice. The insurer is ordered to
So ordered.