276 Mass. 600 | Mass. | 1931
This is a workmen’s compensation case. G. L. c. 152. The employee for some time was employed as a “treer” by the United Novelty Shoe Co., Inc. — Maryland
After hearings on February 17, and March 3, 1930, a single member of the Industrial Accident Board found “that this employee received a personal injury which arose out of and in the course of his employment with the United Novelty Shoe Company, due to the irritation and breaking of his skin in the performance of his work as a treer, and inflammation and poisoning caused by the employee’s use of ammonia and liquid dye polish . . . that the employee’s injury was received on or about July 25, 1929, . . .• that this condition became disabling on August 6, 1929, about one week after the employee had left his employment with the United Novelty Shoe Company,” “that the condition which incapacitated the employee was not materially affected by his subsequent employment elsewhere, and that all of his incapacity for work subsequent to August 6, 1929, is due to the injury received while in the employment of the said Shoe Company,” awarded compensation against the Maryland Casualty Company, for total incapacity for two weeks beginning August 6, 1929, partial incapacity thereafter until August 30, 1929, and total incapacity from August 30, 1929, to January 20, 1930, and reserved the employee’s further rights. The reviewing board adopted the findings and decision of the single member. This decision was not presented to the Superior Court.
After a hearing on November 6,1930, as to the employee’s further rights, the reviewing board, reversing the decision of the single member, found “that the condition which incapacitated the employee subsequent to January 20,1930, was
1. The award of compensation for total incapacity for work from February 20, 1930, until November 6, 1930, as against this insurer was not justified by the evidence.
The evidence warranted a finding that from February 20, 1930, to November 6, 1930, the employee suffered from industrial dermatitis in his hands to such an extent that he was totally incapacitated for work during that period. It could have been found that industrial dermatitis, though termed a disease, is traceable to a “personal injury” within the meaning of the workmen’s compensation law (§ 26), and is not a “simple disease resulting from [the] employment.” See Sullivan’s Case, 265 Mass. 497, 499, and cases cited. Indeed the insurer makes no contention to the contrary. Poisoning induced by the necessary exposure of an employment falls within a recognized class of personal injuries. Maggelet’s Case, 228 Mass. 57, 61. Pimental’s Case, 235 Mass. 598, 602. See also Hurle’s Case, 217 Mass. 223; Bergeron’s Case, 243 Mass. 366; and Carmossino’s Case, 268 Mass. 35.
The finding of the board in its first decision which was not presented to the Superior Court, that the employee was poisoned by exposure to liquids used by him in his work as a “treer” when employed by the United Novelty Shoe company, and, consequently, that he received a personal injury arising out of that employment, is binding upon the insurer. Hurley’s Case, 235 Mass. 387. Brode’s Case, 251 Mass. 414, 417. McCarthy’s Case, 253 Mass. 553. O’Neil’s Case, 262 Mass. 266. However, the finding in this
The burden rested upon the employee of showing by a preponderance of evidence that his total incapacity between February 20, 1930, and .November 6, 1930, resulted from his original injury and not from an independent intervening cause. Sponatski’s Case, 220 Mass. 526, 528, 531-532. Upham’s Case, 245 Mass. 31. This burden has not been sustained. Though the evidence warranted a finding that the employee’s total incapacity after February 20, 1930, resulted from an outbreak or outbreaks of dermatitis after January 20, 1930, it did not warrant a finding that such outbreak or outbreaks resulted from the original injury.
The employee testified that after January 20, 1930, when employed by the Model Shoe company and later by the Jackson Shoe Company, he was exposed to poisonous liquids' and that, in each instance, his hands broke out again. He stated that the “using of the liquid at his work in the Model Shoe company started up the condition again,” and that “it was the work he did there which caused his hands to break out again.” In his testimony at the original hearing he stated that he “left this work on account of a recurrence of the condition of his hands.” He testified that when he first went to work for the Model Shoe company on January 20, 1930, “his hands were in fair condition although not entirely well. The soreness had not entirely gone.” A physician who had treated the employee, called by him as a witness, testified that on January 20, 1930, the condition of the plaintiff’s hands was “fairly clear,” that on that date “his hands were in such a condition that if he kept away from irritants [they] . . . would have come along all right.” He testified, however, that “if the man went back and did
The employee’s description of the first outbreak of dermatitis after January 20,1930, as a “recurrence of the condition of his hands” is not sufficient to warrant a finding of a causal relation between that outbreak and the original injury. This testimony is consistent with an outbreak similar to an earlier one, but caused by a new injury. Willis’s Case, 245 Mass. 244, 248, 249-250. So also to “start the condition again” is consistent with a new injury.
The evidence warranted findings that the outbreak found by the first decision of the board to have resulted from the original injury was not fully cured on January 20, 1930, and that the employee on that date had such susceptibility to dermatitis that there was a high degree of probability, amounting almost, if not quite, to certainty, that further exposure to poisonous liquids would result in an outbreak of the disease. According to the employee’s uncontradicted testimony, there were such further exposures and outbreaks.
Even if the employee is not bound by his statement that the first outbreak after January 20, 1930, was caused by his work for the Model Shoe company (see Whiteacre v. Boston Elevated Railway, 241 Mass. 163, 165-166), the evidence warranted such a finding. So, also, there was evidence that exposure in the course of his employment by the Jackson Shoe Company caused an outbreak of the disease. No question is before us as to the responsibility of the insurers of these subsequent employers for the employee’s incapacity for work, but it is to be noted that each of these employers took the employee at the time it employed him in his “then
There is nothing in the case to indicate that the employee would have been totally incapacitated for work between February 20, 1930, and November 6, 1930, or, indeed, that he would not have been fully cured of the original outbreak of the disease before February 20, 1930, if he had not been exposed to poisonous liquids after January 20, 1930. On the other hand, a finding was not warranted that the outbreaks after January 20, 1930, would not have occurred but for the employee’s condition on that date due to his original injury, in which respect the case differs from Gaglione’s Case, 241 Mass. 42, and Geary’s Case, 253 Mass. 114, relied on by the employee. Neither of these propositions, however, would be conclusive against the employee if it appeared that his total incapacity for work resulted from the combined effect of the original injury and later injury or injuries, (see Rooney v. New York, New Haven & Hartford Railroad, 173 Mass. 222, 223-224), and that no later injury was an independent intervening cause of such incapacity. Such proof has not been made.
Even if it is assumed in favor of the employee that the fact that he had an outbreak of dermatitis in the course of his employment by the United Novelty Shoe company, or the fact that this outbreak was not fully cured on January 20, 1930, rendered him more susceptible to an outbreak upon further exposure to poisonous liquids than he otherwise would have been, it does not appear that his further exposure to poisonous liquids was not so distinct from his original injury as to constitute an intervening cause of incapacity. See Willis’s Case, 245 Mass. 244. Such further exposure was not an incident of the original injury or of the resulting outbreak. Hence Hartnett v. Tripp, 231 Mass. 382, Wilder v. General Motorcycle Sales Co. 232 Mass. 305, and Clayton v. Holyoke Street Railway, 236 Mass. 359, are distinguishable. This is not a case of a return of an em
2. The award of compensation for partial incapacity for work after November 6,1930, as against this insurer was not justified by the evidence.
There was no evidence that the outbreak of dermatitis from which the employee was suffering immediately before November 6, 1930, was fully cured on that date. So far as the employee’s partial incapacity for work thereafter resulted from this outbreak, he is in no better position as against this insurer with respect to compensation for partial incapacity after November 6, 1930, than with respect to compensation for total incapacity for the period between
The decree is to be reversed and a decree entered for the insurer.
So ordered.