2 Mass. App. Ct. 63 | Mass. App. Ct. | 1974
This case arises under the Massachusetts Workmen’s Compensation Act and is before this court on an appeal by the insurer from a Superior Court decree which awarded the employee total and permanent incapacity and dependency compensation dating from April 17, 1970. The Superior Court decree was in conformity with the decision of the reviewing board (board), which had affirmed and adopted as its own the
The employee’s injury has been the subject of several proceedings before the Industrial Accident Board. As those proceedings are relevant to a consideration of the issues in this case, we proceed to summarize them. On March 24, 1961, while working as a mechanic, the employee injured his right hand. Although the employee recovered from the physical effects of his accident, he remained unable to work because of feelings of “light-headedness, dizziness and weakness of his legs.” His condition was diagnosed in 1962 as a “ [pjsychoneurosis-anxiety reaction, stress: severe; fear of reinjury at work.” The employee received total incapacity and dependency compensation from 1961 until 1965. In September, 1965, a single member found the employee capable of performing work and authorized the insurer to discontinue compensation. This decision was modified by the board, which found the employee partially incapacitated as of that date and awarded him compensation. In September, 1968, the statutory limit on total and partial incapacity compensation was reached
At some date subsequent to April 1, 1966, the employee initiated a further proceeding in which he claimed total incapacity compensation dating from April 1, 1966, and permanent and total incapacity compensation from September, 1968, when his partial
Approximately two weeks after the board rendered its decision denying the employee’s claims for the 1966-1970 period, the employee initiated a new proceeding, on this occasion requesting total and permanent incapacity compensation dating from April 17, 1970. His claim was allowed by the single member on May 30, 1972, in a decision which was subsequently adopted and affirmed by the board.
It is the contention of the insurer that the single member’s 1972 finding of total and permanent incapacity was erroneous as a matter of law (Hachadourian’s Case, 340 Mass. 81, 85 [1959]; Sutherland’s Case, ante, 58 [1974]),
The only evidence of a change in the present employee’s condition between 1970 and 1972 was his testimony and the testimony of one Dr. Rizzo, a physician called by him. The employee testified that his “condition” subsequent to April, 1970, was “ [n]ot the same. Maybe just slightly worse at times,” but said that his “symptoms” were the same in 1972 as they had been four years earlier. These comments were at best speculative and perhaps contradictory; hence they must be disregarded. Perangelo’s Case, 277 Mass. 59, 65 (1931). Johnson’s Case, 278 Mass. 365, 368 (1932). Sevigny’s Case, 337 Mass. 747, 749-750 (1958).
Dr. Rizzo’s testimony on the issue of change in condition was equally insubstantial. Asked whether the employee had given him any indication that his condition had worsened in the last two or three years the witness answered, “A hint of it ... He expresses discouragement, low morale and feelings of not being much good.” This testimony must also be disregarded as speculative, especially in light of other testimony by the same witness that the employee’s “feelings are similar to what they were following the accident and only made worse because it is now eleven years later.” Dr. Rizzo was also asked whether the employee’s medical history indicated a change of condition since his accident in 1961. He replied, “It got progressively worse; eleven years have elapsed. That makes a big difference.” To the extent
We conclude that the above summarized testimony does not constitute evidence of a change in the employee’s condition between April 17, 1970, the date of the final evidentiary hearing concerning his previous claim, and May 18, 1972, the date on which evidence was heard in the present case. As there was no other evidence to
The decree entered by the Superior Court is reversed and a new decree is to be entered denying compensation for the period from April 17, 1970.
So ordered.
G. L. c. 152, §§ 34, 35 (as amended through St. 1959, c. 566, §§ 1, 3).
The employee’s claim to total incapacity compensation was filed pursuant to G.L. c. 152, § 34 (as amended through St. 1959, c. 566, § 1). His claim to permanent and total incapacity compensation was filed pursuant to G.L. c. 152, § 34A (as amended through St. 1959, c. 566, § 2).
The insurer also argues that a psychoneurosis such as was diagnosed in the present case cannot serve as the basis for a claim under G.L. c. 152, § 34A. In light of the view we take of this case we find it unnecessary to decide this question.
Dr. Rizzo stated in a medical report incorporated in the record that: “One impartial examiner [Dr. Charles Benedetti] saw the claimant four times in consultation and each time he reported Mr. McEwen to be totally and permanently disabled. The examinations conducted by Drs. Maxwell MacDonald and Leo Alexander yielded essentially the same findings.” The impartial examiner in fact reported on February 7, 1966, that the employee was “capable of some type of work.” On May 21, 1968, the same examiner gave an opinion that “in his present state” the employee was “unemployable” but that “this condition need not lead to a permanent and total disability.” Dr. MacDonald reported on April 3, 1963, that the employee was then totally disabled but “should recover and return to work with proper handling.” In the course of the April, 1970, hearing Dr. Alexander testified that in 1969 he had diagnosed the employee as suffering from “depression with phobic features”; however, he suggested intensive treatment, a recommendation inconsistent with the diagnosis imputed to him by Dr. Rizzo.