Pierce's Case
- Reporters:
- , ,
- Before:
- Ronan
The employee suffered a back strain on June 26, 1945, which interrupted his work for a short period, for which he was paid workmen’s compensation. He experienced further difficulty with his back on October 11, 1946, caused by lifting while working for another employer. He was prevented from working for nearly a week and resumed work until May 12, 1947, when he was laid off although there was other work in the plant which he could have done but for the condition of his back. He was out of work until October 16, 1947, when he secured work with another employer. The employee filed a claim for workmen’s compensation on March 4, 1947, and now seeks compensation for the period he was away from his job in October, 1946, and for the period from May 12, 1947, *651 to October 16, 1947. Shortly after May 12, 1947, he applied for and, after a waiting period, was paid unemployment benefits up to October 16, 1947. The judge without making any decision 1 reported the question whether the employee was entitled to receive workmen’s compensation during the period he was receiving these unemployment benefits.
We are met at the threshold with the inquiry whether this case is properly here upon the report of the judge of the Superior Court. The question, so far as we are aware, has not been decided by this court. It was not presented, considered, or decided in
Komar’s Case,
293 Mass. 405. We lay that decision to one side.
Vigeant
v.
Postal Telegraph Cable Co.
260 Mass. 335, 343. The power of a judge of the Superior Court to report to this court an action at law or a suit in equity is wholly the creature of statute, and the same is true with respect to a probate judge,
The workmen’s compensation “act has a procedure all its own, being neither an action at law nor a suit in equity al *652 though resembling the latter in many respects.” Sterling v. Frederick Leyland & Co. Ltd. 242 Mass. 8, 13. It has frequently been said that procedure under the act is governed in general by the practice in equity. Gould’s Case, 215 Mass. 480. Liberty Mutual Ins. Co., petitioner, 298 Mass. 75. Employers’ Liability Assurance Corp. Ltd. v. DiLeo, 298 Mass. 401. Duggan’s Case, 315 Mass. 355. It has accordingly been held that questions of law arising in the Superior Court in a proceeding under the workmen’s compensation act cannot be brought here by a bill of exceptions. Gould’s Case, 215 Mass. 480, 483. McNicol’s Case, 215 Mass. 497, 501. Keohane’s Case, 232 Mass. 487, 489. Kareske’s Case, 250 Mass. 220, 225-226. On the other hand, it has been often pointed out that the only way to bring a question of law here in a workmen’s compensation case is by appeal. Pigeon’s Case, 216 Mass. 51, 55. Cripps’s Case, 216 Mass. 586, 588. Sciola’s Case, 236 Mass. 407, 415. Nagle’s Case, 310 Mass. 193, 197. It may not be improper to state that even if the judge in disposing of the instant case had the same power to deal with it as if he were hearing a suit in equity, he would have no power to report the case in the manner in which he attempted to report it. Curran, petitioner, 314 Mass. 91, 93-94. National Development Co. v. Gray, 315 Mass. 127, 128-129. The act makes no express provision for making a report, excepting only in accordance with St. 1949, c. 61. 1 Section 11 of the act clearly defines the duty of a judge of the Superior Court in a workmen’s compensation case. Upon the presentment of certified copies of an order or decision of a reviewing board, “The court shall thereupon render a decree in accordance” with the law, and “Such decree shall have the same effect, and all proceedings in relation thereto shall thereafter 2 be the same, as though rendered in a suit duly heard and determined by said court, except that there shall be no appeal therefrom upon questions of fact,” nor shall there be an *653 appeal from decrees relative to certain matters not now material. It is the duty of the judge under this section, if the decision of the reviewing board is complete and adequate to support a decree, to enter the appropriate decree required by the law upon the facts reported by the reviewing board unless it appears that the findings are not supported by the evidence or that the proceeding before the board is in some way vitiated by an error of law. Walsh’s Case, 281 Mass. 228. McCarthy’s Case, 314 Mass. 610, 612. Willand’s Case, 321 Mass. 677, 678. The decree which the act contemplates shall be entered in the Superior Court shall have the same effect as a decree in equity, and appellate proceedings thereafter taken are to conform to the practice in equity except that questions of fact shall not be open to review as they are in the ordinary appeal in equity. Lowell Bar Association v. Loeb, 315 Mass. 176, 178. In other words, it was not optional with the judge to decide the present case and enter a decree, or to decline to make a decision on the merits and report the case to this court. “The statute requires a final decree from which the party aggrieved can appeal to this court.” Keohane’s Case, 232 Mass. 487, 489. Whether or not he shall either enter a decree or report the case is not governed by equity practice. But once a decree has been properly entered and an appeal taken, the steps for perfecting and entering the appeal in this court are to be performed in accordance with the practice prevailing in equity. We therefore are constrained to conclude that the judge was without power to report the case and that consequently there is nothing before this court.
The determination of the question of law sought by this report has been fully argued by the parties. A previous attempt to raise this question failed in Demetre’s Case, 322 Mass. 95, 101. A decision will assist the Industrial Accident Board in the performance of its duties, as this question of law is certain to be presented soon if it is now left without decision. It is an important question and is of general public interest. Without meaning to establish a precedent, we think it appropriate to express our opinion on the merits of *654 this question. Moore v. Election Commissioners of Cambridge, 309 Mass. 303. Wellesley College v. Attorney General, 313 Mass. 722, 731. Massachusetts Charitable Mechanic Association v. Beede, 320 Mass. 601, 609.
What is now the employment security act, G. L. (Ter. Ed.) c. 151A, stems from the original c. 151A, inserted by St. 1935, c. 479, § 5. The constitutionality of this chapter was sustained in Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 275, as an exercise of the police power, designed, it was said at page 282, “to afford relief to those who have been employed in the selected kinds of business since the effective date of that law when they are thrown out of work through no fault of their own.” See also Farrar v. Director of the Division of Employment Security, 324 Mass. 45, 48; Moen v. Director of the Division of Employment Security, 324 Mass. 246, 250.
The original c. 151A by § 19 (e) provided that no benefits were to be paid to an employee who was receiving benefits under the workmen’s compensation law, “provided, that if he is receiving only partial compensation under said chapter one hundred and fifty-two, which is less than the benefits which would otherwise be due him hereunder for unemployment, he shall receive such unemployment benefits reduced by the amount of such partial compensation.” This original chapter was superseded by a new c. 151A contained in St. 1937, c. 421, § 1, which in turn gave way in St. 1941, c. 685, § 1, to another chapter entitled “Employment Security.” This last mentioned chapter by § 25, subpara-graph (d), provided that no benefits should be paid during “Any period with respect to which he is receiving or has received or is about to receive remuneration in the form of .• . . (3) compensation for partial or total disability under the Workmen’s Compensation Law of any state or under any similar law of the United States, but not including payments for certain specified injuries under section thirty-six of chapter one hundred and fifty-two; or payments for similar specified injuries under workmen’s compensation laws of any state or under any similar law of the United *655 States.” This is the present form of this subparagraph (d) (3) in so far as now material and as it now appears as G. L. (Ter. Ed.) c. 151 A, § 25, subparagraph (d) (3).
This brief legislative history of said subparagraph (d) (3) demonstrates that the payment of benefits to those who are about to receive compensation or who are receiving compensation by reason of partial incapacity due to an industrial injury is now restricted to those whose partial incapacity has resulted from the loss of an arm or a.leg or some one of the other specific injuries enumerated in § 36, as amended, of the workmen’s compensation act. The reason for the change in the employment security act may have been a recognition by the Legislature that the effective administration of the workmen’s compensation act and the employment security act required that they should operate independently of each other in their respective fields, without interference by the board charged with the administration of one of these acts with the powers and duties of the board charged with the administration of the other act. The Legislature also recognized that a single exception should be made in the case of a workman suffering partial incapacity due to one of the specific injuries mentioned in said § 36, because in such a case it might be reasonably assumed that the workman would not only suffer a diminution of his earning capacity due directly to his injury but would be further handicapped in securing employment during a period of business depression due to his visible maimed or crippled physical condition and so his inability to earn might in part at least be due to the economic situation. Sullivan’s Case, 218 Mass. 141, 143. Percival’s Case, 268 Mass. 50, 54. Manley’s Case, 282 Mass. 38. Strycharz’s Case, 291 Mass. 212, 216. In this limited class of cases there is an exception to the general rule that one suffering a partial loss of earning power resulting from an industrial injury is entitled to compensation based upon a proportion of the difference between his average weekly earnings before his injury and what he is able to earn thereafter, G. L. (Ter. *656 Ed.) c. 152, § 35, 1 and if the actual wages received after the injury have been diminished by reason of economic, conditions, the extent that they have been so lessened is to be disregarded in determining his ability to earn subsequent to the accident. The logs in earning capacity must result “directly from the injury and not from a depressed condition of the industry in which the employee had been engaged.” Driscoll’s Case, 243 Mass. 236, 239. Korobchuk’s Case, 277 Mass. 534, 536. With the exception in favor of those who sustain partial incapacity from one of the specific injuries mentioned in said § 36, one is not entitled to benefits under the employment security act by reason of a disability to earn due to an industrial injury. Compensation for such an injury comes within the exclusive scope of the workmen’s compensation act, and the situation of the injured employee in this respect is the same as it was before the enactment of the employment security act. It was said in a workmen’s compensation case arising before the enactment of the employment security act that the workmen’s compensation “statute contemplates that compensation is to be paid for diminished capacity to earn wages; and the employee, in common 2 with others, must bear the loss resulting from business depression.” Capone’s Case, 239 Mass. 331, 333.
Both the workmen’s compensation act, designed to relieve hardships experienced by employees injured while engaged in the performance of their work, and the employment security act, aimed at alleviating the harmful consequences to workmen resulting from time of business depression, are different and distinct parts of a general statutory plan adopted by the Legislature for the enhancement of the public welfare. Both acts must be construed as harmonious and consistent parts of this general plan. The distinction between those eligible for compensation and those eligible for benefits must be observed. The restriction
*657
contained in § 25 (d) (3) of the employment security act limiting the payments to injured employees suffering from a partial disability by reason of having sustained one of the injuries specified in
It is finally urged by the employee that the benefits received under the employment security act were benefits
*658
within
The remaining question is what effect the receipt of benefits by the employee should have upon his right to secure compensation during the time he was receiving benefits. The fund out of which these benefits were paid came from contributions made by his employer together with other employers. The employee paid nothing into this fund. Moreover, the receipt of benefits by employees adversely affects the benefit wage ratio of their employers and their rate of contribution to the employment security fund. The employer is also required at his own expense to procure compensation insurance. Both the benefits and the compensation are charges on industry, but, with the exception covering specific injuries under c. 152, § 36, as amended, it was not intended that industry shoüld be saddled with the double burden of paying benefits and compensation during the same period in which an employee is not earning wages. See Mizrahi’s Case, 320 Mass. 733, 736-737.
It is the general policy of the law that there cannot be double recovery for the same injury or loss. This policy has been recognized in workmen’s compensation cases where the employee has suffered two injuries of a com-pensable nature and can receive compensation only from the insurer on the risk at the time of the later injury for the incapacity following that injury where there is a causal *659 connection between that injury and the incapacity, although the incapacity might have been less if he had not suffered the earlier injury. Blanco’s Case, 308 Mass. 574. Morin’s Case, 321 Mass. 310. Rock’s Case, 323 Mass. 428. Lambert’s Case, ante, 516. This policy of the law is of universal application. See O’Neil v. National Oil Co. 231 Mass. 20; Karcher v. Burbank, 303 Mass. 303, 305-306; Sacchetti v. Springer, 303 Mass. 480; Arnold v. Jacobs, 316 Mass. 81, 84; Brockton Savings Bank v. Shapiro, 324 Mass. 678, 684-685.
The employee was not eligible to receive benefits unless he was “capable of and available for work and unable to obtain work in his usual occupation or any other occupation for which he is reasonably fitted.”
We conclude that the employee, not suffering from a specific injury included in § 36, as amended, of the compensation act, is barred from recovering compensation for the same period during which he was receiving benefits under the employment security act. The report of the case to this court for reasons already stated must be discharged.
So ordered.