Machado's (Dependent's) Case

356 Mass. 720 | Mass. | 1969

This is an appeal by the claimant widow from a decree of the Superior Court awarding her specific compensation under G. L. c. 152, § 36 (h) (bodily disfigurement) and 36 (i) (loss of bodily functions or sense other than hearing and sight), “to be paid ... in a bulk sum” under § 36A. This was the same amount the single member found due. His findings and decision were adopted and affirmed by the reviewing board. The single member found that during the course of his employment the employee, a glazer, fell from the second story window of a school onto the asphalt pavement of the school yard about 10 a.m. About 10:46 a.m. a police ambulance arrived and took the employee to the hospital where he was admitted at 11:10 a.m. “ [P]rior to the arrival of the ambulance . . . the employee had some degree of consciousness but was unconscious and incoherent while in the ambulance and never regained consciousness and was pronounced dead at 11:50 a.m.” The claimant widow contends that, in addition to the amounts she received under G. L. c. 152, § 36 (h) and 36 (i), she was entitled to compensation under § 36 (a) (loss of or loss of use of both eyes), 36 (f) (loss of hearing of both ears), 36 (q) and 36 (n) (loss of or loss of use of either or both legs), and 36 (q) and 36 (t) (loss of or loss of use of either or both arms). She asserts that the single member’s conclusion that he was “unable to determine with reasonable certainty the exact losses of bodily function this employee would have been left with had he survived for a period of time” was erroneous as a matter of law. While such a determination might have been warranted on the conflicting expert medical testimony heard (see Lauble’s Case, 341 Mass. 520), such a determination was not required as a matter of law. Barbagallo’s Case, 243 Mass. 86, 87-88. Amon’s Case, 315 Mass. 210, 214-215. Morris’s Case, 354 Mass. 420, 426.

John W. Costello for the claimant. Philander S. Ratzkoff for the insurer.

Decree affirmed.