287 Mass. 459 | Mass. | 1934
This is a workmen’s compensation case. G. L. (Ter. Ed.) c. 152. The Superior Court entered a .decree in accordance with the conclusions of the Industrial
It was agreed that the employee received an injury on December 15, 1931, but the insurer contends that the evidence did not warrant a finding that his condition at the time of the hearing by the board member resulted from that injury or that he then was totally incapacitated. We cannot say that the findings were not warranted.
The employee’s injury was a fracture of the first metatarsal of his left foot, caused by a steel beam falling on top of the foot. At the hearing before the single member on May 10, 1933, the employee testified that at the time of the injury “he was a blacksmith on auto work, the heaviest kind of work,” that he worked two days in June, 1932, but “has not done any work since. . . . the foot is so stiff that he can scarcely walk. ... He cannot step forward on the injured foot at all. . . . His foot is no better than it was some months ago,” and that he cannot do heavy work. The impartial physician, who examined the employee on December 1, 1932, in his report stated that there was “an increase in the size of the first metatarso-phalangeal joint” of the injured foot, and that the “fracture has long since healed but there still remains a tenderness over this metatarsal below the fracture. ... It probably represents a nerve ending that was caught in the callous from adhesions.”
There was testimony from three orthopedic surgeons, in some detail, as to the condition of the employee’s foot, and the treatment which had been given and ought to be given. All testified to some restriction of motion in the great toe joint of the left foot. One of them, called by the insurer, testified that he examined the employee on July 26, 1932, that the employee “complained of sensitiveness to palpation over and under the first metatarsal throughout its
Some of the evidence above summarized, and other evidence not here summarized, tended to show that the condition of the employee’s foot in December, 1932, and thereafter, was not caused by the injury, but the evidence must be considered in its aspect most favorable to the employee. And the evidence so considered warranted a finding that there was a causal relation between the injury and the employee’s condition. The evidence of the impartial physician tended to show that the injury was the reasonably probable cause of the condition of the employee’s left foot at the time he examined him. Marlow v. Dike, 269 Mass. 38, 40. Rash v. Albert, 271 Mass. 247, 252. Blanchard’s Case, 277 Mass. 413, and cases cited. See DeFilippo’s ' Case, 284 Mass. 531, 534-535. And other evidence tended to show that the condition of the employee’s left foot at the time of the hearing was a continuance of the previous condition.
The surgeon who last examined the employee before the hearing testified that he “felt” that the employee “should be operated on for permanent relief,” but that “He will be disabled between two and three months at least from doing hard work after that operation.” Another surgeon testified that he “did not believe that there was any operation indicated in October, 1932.” The board was not required as matter of law on this testimony and related evidence to find that “it fairly appears that the result of such operation will be a substantial physical gain,” or that the employee, after reasonable opportunity therefor, had unreasonably refused to submit to an operation. Snooks’s Case, 264 Mass. 92, 93-94. See also Floccher’s Case, 221 Mass. 54, 55. The board, therefore, was not precluded by testimony in regard to an operation from finding partial or total incapacity during the period in question. Whether failure to submit to such an operation will be a ground for discontinuance of compensation, wholly or in part, is not before us on this appeal.
There was evidence that the employee was incapacitated
Decree affirmed.