O'Neil's Case

Jan 9, 1928

Reporters:: , ,
Before:: Braley

Braley, J.

The employee, John O’Neil, fractured the large toe of his right foot May 2, 1921, the injury being received in the course of, and arising out of,his employment. The insurer paid compensation for total incapacity at a rate based on his average weekly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍wages to September 27, 1921, when, after a hearing, payment was discontinued with the unqualified approval of the board member, whose decision on review was affirmed by the Industrial Accident Board October 31, 1921. This decision was not certified to the Superior Court. G. L. c. 152, §§ 8, 10, 12, 26, 29. The adjudication of the board on December 31, 1921, therefore, was decisive of the question that the incapacity of the employee for work had ceased. It was the law of the case until vacated or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reviewed.’ Kareske’s Case, 250 Mass. 220. McCracken’s Case, 251 Mass. 347, 351. Brode’s Case, 251 Mass. 414. See Weir’s Case, 252 Mass. 236. The employee, however, on July 25, 1923, filed a request for the reopening of the case alleging that since the date of the final report of the “Board of Review” he had not been employed in any capacity and that the reason for his unemployment and inability to work was his original injury, which had not been alleviated by medical treatment although he had employed physicians and attended hospitals, and could only ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be remedied and removed by a major surgical operation. It is also alleged that he never has had the benefit of an examination by an impartial physician appointed by the board. The application was referred to a board member *268who heard the parties September 24, 1923, and after stating the nature of the injury, and the original award of compensation, he followed the previous conclusion that the incapacity of the employee ended September 27, 1921, and ruled that the case, having been finally determined, could not be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reopened. The ruling of the board member having been affirmed on review, the employee caused the decision to be certified to. the Superior Court where a motion was made to remand the case to the Industrial Accident Board for further hearing. The allegations as to the nature and extent of the employee’s injuries, and their effect upon his earning capacity had already been heard and decided by a tribunal clothed with authority to act, and in whose rulings no error of law appears for reasons previously ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍stated. While an impartial physician may be called by a member of the board, the statute is not mandatory but permissive, and the failure to call such a physician shows no error of law. G. L. c. 152, § 9.

. The decree dismissing the claim is affirmed.