McCann's Case

| Mass. | May 28, 1934

Rugg, C.J.

The employee sustained a personal injury in September, 1932, arising out of and in the course of his employment, and was paid compensation by the London Guarantee & Accident Company, Limited, the insurer of his employer at that time. He returned to work for the same employer on April 12, 1933, and continued until June 14, 1933, when he was told that because of the condition of his hands he could not work longer. The original injury was dermatitis. During the period of his second employment the United States Fidelity & Guaranty Company insured his employer. The questions heard before the single member and by the Industrial Accident Board on review were (1) whether the employee sustained an injury arising out of and in the course of his employment on June 14,1933; (2) whether the disability, if any, since June 14, 1933, was due to the injury sustained on that date or was “a continuation or recurrence of his original injury of September 3, 1932”; (3) present disability.

There was evidence which need not be narrated to support the finding that the old injury recurred on June 14, 1933, and that there was no new injury on that date. The physician of the employee testified at the hearing held on October 2, 1933, that during the time he saw the employee from November 5, 1932, “until the very present moment when he just showed his hands now, they have not returned to normal. The eruption of November, 1932, had cleared up, but the skin had never returned to normal.” In answer to the question whether he had an opinion at the time of his examination in June, 1933, that his “condition was a continuation or recurrence of the condition he was treating him for previously or a new condition” he stated that “it was a recurrence.”

It is a familiar principle of the workmen’s compensation law that the finding of the board must stand if supported by any evidence. We cannot weigh conflicting evidence or determine the facts. We are of opinion that the finding that the injury suffered on June 14, 1933, was a recurrence of the original injury and not a new one was warranted by the evidence. The case falls within the class illustrated by Gaglione’s Case, 241 Mass. 42" court="Mass." date_filed="1922-03-04" href="https://app.midpage.ai/document/gagliones-case-6435722?utm_source=webapp" opinion_id="6435722">241 Mass. 42, Corey’s Case, 276 Mass. 610" court="Mass." date_filed="1931-09-21" href="https://app.midpage.ai/document/cokeys-case-6440072?utm_source=webapp" opinion_id="6440072">276 Mass. 610, and Wentworth’s Case, 284 Mass. 479" court="Mass." date_filed="1933-11-28" href="https://app.midpage.ai/document/wentworths-case-6440953?utm_source=webapp" opinion_id="6440953">284 Mass. 479, and is distinguishable from Panagotopulos’s, Case, 276 Mass. 600" court="Mass." date_filed="1931-09-21" href="https://app.midpage.ai/document/panagotopuloss-case-6440071?utm_source=webapp" opinion_id="6440071">276 Mass. 600, and Maloof’s Case, 276 Mass. 610" court="Mass." date_filed="1931-09-21" href="https://app.midpage.ai/document/cokeys-case-6440072?utm_source=webapp" opinion_id="6440072">276 Mass. 610.

It cannot be said as matter of law that the return of the employee to work under substantially the same conditions as those existing at first was such a voluntary act on his part as to break the line of causation flowing from his original injury. Whether that was so was a question of fact. Wentworth’s Case, 284 Mass. 479" court="Mass." date_filed="1933-11-28" href="https://app.midpage.ai/document/wentworths-case-6440953?utm_source=webapp" opinion_id="6440953">284 Mass. 479.

The third question stated by the single member is ‘ ‘ present disability,” that is, disability as of October 2, 1933. The only testimony bearing on that point was that of the employee who said that his hands “still bother him” and that he had not “worked since June 14, 1933.” His physician testified that in February, 1933, he advised the employee to get out of that type of work; that he “could do work other than placing his hands in soapy solutions, — all the time while he had this eruption he could work and it is now possible for him to work. He would advise his doing work other than that requiring him to place his hands in water.” All this testimony did not warrant a finding of total disability after June 14, 1933. It warranted a finding of disability as to the particular employment but not as to employment in general. It was the duty of the employee to try to get other work. It is not found whether the disability was due to the injury or to other causes for which the insurer would not be liable. Manley’s Case, 282 Mass. 38" court="Mass." date_filed="1933-02-14" href="https://app.midpage.ai/document/manleys-case-6440657?utm_source=webapp" opinion_id="6440657">282 Mass. 38. It appeared that in April and May, 1932, he worked for the city. The insurer has argued this point and it is open on the record.

The result is that the findings as to disability arising on June 14, 1933, from the original injury must stand. The decree, however, must be reversed and the case recommitted to the Industrial Accident Board for further hearing on the question of total disability.

So ordered.