293 Mass. 526 | Mass. | 1936
This is a workmen’s compensation case. G. L. (Ter. Ed.) c. 152. Previous proceedings in regard to this employee’s compensation, as shown by the record, were as follows: “An agreement in regard to compensation filed with the board on February 19, 1935, gives the date of injury as December 5, 1934; the nature of injury as ‘index finger of right hand injured’; the cause of accident as 'Was picking waste out of comber gears, started comber, caught finger and thumb in gears’. Under this agreement the employee was paid compensation at the rate of $9 a week, based on an average weekly wage of $9.86, and, in addition twelve weeks specific compensation of $6.57 for loss of one and one third phalanges of index finger of right and major hand. The employee was paid disability compensation to February 18, 1935 when she signed an agreement to discontinuance.”
The question for decision by the Industrial Accident Board, as stated by the record, was “Whether further specific compensation is due.”
The single member found that the employee had lost “the terminal phalange and more than half of the middle phalange of the index finger of the right hand,” and that “the part that remains of the said middle phalange approaches the infinitely small, from the working standpoint, and is incapable of use as a phalange.” He ruled that the employee was entitled to eight weeks additional specific
The record does not show how the claim for further specific compensation came before the Industrial Accident Board. And it does not disclose the terms of the agreement in regard to compensation. See Lemieux’s Case, 223 Mass. 346, 348-349. Furthermore, it does not state specifically that such agreement was approved by the board so that it became binding on the board. See G. L. (Ter. Ed.) c. 152, § 6; Perkins’s Case, 278 Mass. 294; Virta’s Case, 287 Mass. 602, 605. In this state of the record and in the absence of argument by the insurer that the matter of further specific compensation was not properly before the board or that an award of such further compensation was precluded by the agreement, we consider only the question argued by the insurer — whether on the findings and the evidence the employee was entitled to further specific compensation as adjudged by the decree. See Gillard’s Case, 244 Mass. 47, 55-56; Latherizer Corp. v. Department of Public Utilities, 278 Mass. 454, 460.
By the statutory provisions dealing with specific compensation, G. L. (Ter. Ed.) c. 152, § 36, (see now St. 1935, c. 333) such compensation is to be paid for the “loss by severance of the terminal phalange ... of any finger . . . for a period of twelve weeks” (paragraph [kj), or for the “loss by severance at or above the second joint of the index finger of the right or major hand ... for a period of twenty weeks” (paragraph [h]). There is, however, a further provision that the “additional amounts provided for in this section in case of the loss of a particular . . . finger . . . or phalange shall also be paid for the number of weeks above specified if the injury is such that that . . . finger . . . or phalange is not lost but so injured as to be permanently incapable of use” (paragraph [1]).
The decree — in effect extending the period of compensation from twelve to twenty weeks — was required as matter of law by the findings of the reviewing board if these
The findings of the reviewing board were supported by the evidence before it. Its findings of fact rather than those of the single member are controlling (Norman’s Case, 278 Mass. 464, 466), and consequently it is unnecessary to decide whether the findings of the single member were supported by the evidence before him. The reviewing board had before it not only the evidence which was before the single member, but also the report of the impartial physician. See G. L. (Ter. Ed.) c. 152, §§ 9, 10; Von Ette’s Case, 223 Mass. 56, 58; Phillips’s Case, 278 Mass. 194, 195-196. The findings of the board as to severance were in accordance with the report of the impartial physician which, on this point, did not differ materially from the evidence before the single member. It is not questioned that the severance of the finger resulted from an injury arising out of and in the course of the employment. The finding of the board as to incapacity of the finger for use was substantially in the terms of the report of the impartial physician which, on this point, was in conflict with the evi
Decree affirmed.