333 Mass. 335 | Mass. | 1955
The employee sustained an injury to his back in 1944 while working for Pacific Mills. Liberty Mutual Insurance Company was the 1944 insurer. The employee in August, 1951, at which time Pacific Mills was a self insurer, complained that something happened to his back on August 14, 1951, when he tried to lift a heavy object. He was operated upon for a ruptured disc in October, 1951. The single board member stated “Questions” as
The reviewing board affirmed and adopted the findings and decision of the single member.
A decree of the Superior Court recommitted the case in order that specific findings might be made as follows: — “1. Did the employee sustain any injuries on August 14, 1951? 2. If it is found the employee did sustain an injury or injuries on August 14, 1951, the full extent thereof. 3. Instead of a statement in the following words: — ‘the opinion of Dr. Kurth is more persuasive than is the opinion of the other two doctors and I adopt Dr. Kurth’s opinion, ’ it be determined by a definite finding whether or not on all the evidence it was established there was a causative relationship between the claimed injuries of August 14, 1951, and the disability alleged to flow therefrom forming the,basis of the employee’s claim.”
The reviewing board then heard further arguments and
This is the appeal of the self insurer from the decree.
We find no error.
While the exercise of the Superior Court’s discretion to recommit will not ordinarily be reviewed, Bean’s Case, 227 Mass. 558, Lopes’s Case, 277 Mass. 581, 586, the Superior Court may not order the reviewing board to reconsider its decisions on questions of fact open to it on the evidence as a matter of law. Sciola’s Case, 236 Mass. 407, 414—115.
Here, however, it did not appear just what the decision was on a critical question of fact.
The question here concerns the application of the rule that if more than one injury bears a causal relation to the disability and there are successive insurers, chargeability for the whole compensation rests upon the one covering the risk at the time of the most recent injury. Tassone’s Case, 330 Mass. 545. Fitzpatrick’s Case, 331 Mass. 298.
The report of the single member in its statement of the evidence shows that Dr. Kurth testified among other things that he “did not believe the incident described in August [1951] had any relation to . . . [the employee’s] back” and that it “had no effect on that disc or the disability which followed.” The self insurer argues that in adopting Dr. Kurth’s opinion the single member intended to say that he adopted the full scope of Dr. Kurth’s views and that it is clear that the findings of the single member and the reviewing board were in effect that if there was an injury on August 14, 1951, it did not contribute to the disability for which claim is made and that the recommittal in substance required the board to reconsider this finding. The difficulty with this is the statement that the employee’s
The board on recommittal found that there was a causal relationship between the August 14 injury and the subject disability. It was not necessary for the board in these circumstances to confine its action to answering the three questions stated by the court and then await a further certain recommittal to correct its ultimate finding. Dillon’s Case, 324 Mass. 102, 110-111.
Costs of this appeal under G. L. (Ter. Ed.) c. 152, § 11A, inserted by St. 1945, c. 444, as amended, shall be allowed by the single justice.
Decree affirmed.