302 Mass. 24 | Mass. | 1938
This is an appeal from a decree of the Superior Court awarding compensation to an employee under the workmen’s compensation act. The employee had worked steadily for twenty-three years for the subscriber,
G. L. (Ter. Ed.) c. 152, was amended by St. 1935, c. 424, by inserting a new § 9B which provided that the board of registration in medicine should prepare a list of registered
There was error in ruling that the physician who acted as one of the referees was impartial. He had taken X-rays of the employee, who had been referred to him by his family physician. There is nothing in the record indicating whether or not he had secured a medical history from either the family physician or the employee, but it does appear that after the family physician saw the X-ray plates that were taken he changed his previous diagnosis of acute bronchitis and “with the aid of the roentgenologist the supplemental diagnosis of pneumonoconiosis was made.” The X-ray plates which were taken by the referee previous to his appointment were used at the hearing before the single member, and there were contrary opinions expressed by various experts as to whether or not they showed that the employee had pneumonoconiosis. The Legislature never intended that such a referee should act in a dual capacity. The evidence adduced by the insurer tended to show that one supposed to be impartial was mistaken in thinking that the X-ray plates showed the presence of this disease; and yet such evidence could have no probative effect simply because the one who took the X-ray plates afterwards became an industrial disease referee on the same case. Such a circumstance was utterly inconsistent with the requirements of plain justice and the demands of a full and fair hearing of an important issue of fact. In Korobchuk’s Case, 277 Mass. 534, 537, concerning a physician who had operated on the employee’s fingers, it was said that “If this testimony were believed Dr. Bard was not an impartial physician within the meaning of G. L. c. 152,
We are not impressed with the contention that the diagnosis of the referees should be upheld as a majority report. The statute, St. 1935, c. 424, provides for the selection of physicians by a State board and the appointment by another board of three physicians who have been so selected, to act as industrial disease referees upon a case which is then pending before the latter board. The parties have no voice in their initial selection or in their final appointment. As a further safeguard to prevent the appointment of one ineligible to act, the Legislature expressly prescribed that they “shall be impartial.” The case is distinguishable from those where a party has the right to name his representative upon a board of arbitration and where "it is not uncommon ... for each party to choose a neighbor and friend who is understood to have some previous knowledge of the matter in dispute” and where due allowances are made for minor irregularities in upholding reports made by boards so constituted. Morville v. American Tract Society, 123 Mass. 129, 140. Farrell v. German American Ins. Co. 175 Mass. 340. But even in such cases, the ex parte reception of evidence by the arbitrators has been sufficient cause
The medical referees did not constitute the statutory board to which the parties were entitled and their report ought not to have been considered by the single member or the reviewing board. Berninger’s Case, 253 Mass. 52. Korobchuk’s Case, 277 Mass. 534.
The decree in the opinion of a majority of the court must be reversed.
Ordered accordingly.