Paterno's Case, 266 Mass. 323

Paterno's Case

266 Mass. 323 | Mass. | 1929

Caeeoll, J.

The employee was injured on October 1, 1917. His hand was amputated. He was paid specific compensation under the statute, for fifty weeks. In addition he was paid compensation for total disability through March 18,1918, when he returned to work. He received the same wages as before the accident, which were gradually increased during the time he remained with his former employer. In February, 1928, a single member of the Industrial Accident Board awarded total compensation from November 15, 1927, to continue under the statute. On November 15, 1927, the period of five hundred weeks from the date of the injury had expired. This decision was based on the ground that St. 1911, c. 751, Part II, § 9, as amended by St. 1914, c. 708, § 4, St. 1917, c. 249, § 1, directed that compensation for total incapacity was to be paid for five hundred weeks, without designating the date of the injury as the time when the five hundred week period was to begin, while compensation for partial incapacity (St. 1911, c. 751, Part II, § 10), was for a period of not greater than five hundred weeks "from the date of the injury.” The Industrial Accident Board confirmed this finding and the decree was entered in the Superior Court in favor of the employee.

The contention of the insurer is that compensation for total incapacity occurring more than five hundred weeks after the date of the injury cannot be awarded under the statute.

Under St. 1911, c. 751, Part II, §§ 9, 10, total incapacity was to be compensated during a period not greater than five *326hundred weeks, and partial incapacity for a period not greater than three hundred weeks. No specific provision was made for the time when total incapacity was to begin. But in case of partial incapacity the compensation was to begin from the date of the injury. By § 6 of this statute, when death resulted from the injury compensation was to be paid dependents for a period of three hundred weeks “from the date of the injury,” without reference to the time when the death occurred, and, if compensation had been paid to the injured employee before his death, compensation to the dependents was to “begin from the date of the last of such payments,” but was not to “continue more than three hundred weeks from the date of the injury.” By St. 1914, c. 708, the amount of compensation to be paid was increased. In the section relating to the death of an employee, compensation was to be paid for the number of weeks, therein specified, from the date of the injury. When the employee was totally incapacitated, this language was used: “ in no case shall the period covered by such compensation be greater than five hundred weeks.” When partially incapacitated the compensation was not to exceed five hundred weeks “from the date of the injury.” St. 1917, c. 249, further increased the amount to be paid weekly for total incapacity, but no change was made in the period covered by such compensation or in its total amount.

In our opinion the decree in favor of the employee was entered properly. The “period” for which compensation is to be paid does not require that compensation shall be received continually and without interruption. Hunnewell’s Case, 220 Mass. 351, 355. After a period of total incapacity there may be a period of partial incapacity, followed by another period of total incapacity. For incapacity, partial or total, the employee may be awarded compensation. Jameson’s Case, 254 Mass. 371. It would seem that the difference in the phraseology of the sections of St. 1911, c. 751, Part II, §§ 9, 10, as amended, dealing with total and partial incapacity, indicated a legislative purpose that the period of total incapacity was not to be limited to the period of five hundred weeks from the date of the injury. The change in *327the language of the section relating to partial incapacity in • St. 1919, c. 205, to some extent points to the same conclusion. The statute provides that payment is to be made “While the incapacity for work resulting from the injury is total,” limiting the period to five hundred weeks without restriction as to the time when the period begins, and there is nothing in the act which requires us to hold that if total incapacity should develop more than five hundred weeks after .the injury the employee could not recover compensation. An award made after the five hundred weeks had passed would be consistent with the language of the statute, and neither the word “period” nor the statement as to weeks compels the construction that the time must begin to run at the date of the injury, as the insurer contends.

Johnson v. Iverson, 175 Minn. 319, and Cambria Coal Mining Co. v. Wilson, 156 Tenn. 64, tend to support the insurer’s contention that compensation for total incapacity occurring more than five hundred weeks after the injury cannot be awarded under the statute; it is also possible that difficulties may arise in the administration of the statute under the construction to be given the statute; but we feel bound by the language used. We cannot ignore the difference in the phraseology in the section relating to partial incapacity and that in the section relating to total incapacity: The difference must be given effect. We cannot reconstruct the act; we can only interpret it. Morse v. Boston, 253 Mass. 247, 252.

We think the questions argued by the insurer are open. The insurer raised its contention touching the five hundred weeks by motion to dismiss, filed with the single member, which was denied. The insurer’s appeal brought every matter at issue before the board on review. The decision of the board, although not specifying any details, imports approval of the single member on every matter. Gillard’s Case, 244 Mass. 47, 55, 56, relied on by the employee, does not seem to us to be applicable. There was evidence that the employee was permanently incapacitated.

Decree affirmed.