Movitz's Case

266 Mass. 153 | Mass. | 1929

Carroll, J.

In this proceeding under the workmen’s compensation act the employee was awarded compensation. From a decree of the Superior Court in his favor the insurer appealed.

The employee testified that he was injured on October 10, 1927, while operating a baling machine; that as he started the motor, a bar on one of the rolls struck his kneecap throwing him to the floor. The evidence was contradictory. Although the printed record discloses many circumstances that would justify a finding against the employee, we cannot say there was no evidence to support the conclusion of the Industrial Accident Board that the employee’s injury arose out of and in the course of his employment. There was some evidence tending to establish this contention and we do not think the finding should be disturbed.

The employee testified that he did not feel much pain until the day following the accident and did not leave his work until October 13. One of the partners of the Middlesex Paper Tube Company, the employers, testified that he talked with the employee on the day he was taken to the hospital and the employee told him he had been hurt. The physician of the injured employee testified that he took him to the hospital on October 21; that on this date he talked with one of the injured man’s employers and told him the employee had been hurt and he was taking him to the hospital for an operation; that he told the employer of the time the accident happened "and everything else.” The single member and the Industrial Accident Board found that the insurer had information amounting to knowledge eleven days after the employee was injured; that the insurer was not prejudiced by the failure to give notice in writing, because of the information given the employer.

Failure to give the written notice is not a bar to recovery if it is found that the insurer or the insured had knowledge of the injury, or if it is found that the insurer was not prejudiced by such want of notice. G. L. c. 152, § 44. It appeared that one of the partners by whom the claimant was employed made some investigation when he learned of the accident, and the testimony of the doctor showed that the insured had knowledge of the injury. It was also found that the insurer was not prejudiced by the lack of notice. We think this finding was justified, and that the employee should not be deprived of compensation because he failed to give the written notice. Gerald’s Case, 247 Mass. 229. Dorney’s Case, 259 Mass. 350.

Decree affirmed.