355 Mass. 797 | Mass. | 1969
On June 18, 1962, the employee, seventy-two years old, fell twenty feet to the ground from a rigging and suffered multiple injuries from which he died the next day. Under G. L. c. 152, § 36A, the claimant widow sought specific compensation afforded by § 36 for loss of function of right upper extremity, right lower extremity, left lower extremity and for disfigurement of right shoulder and right leg. She appeals from a final decree which adjudged that the employee would have had a 15% loss of function of his right shoulder had he lived, a 25% loss of function of his right lower extremity after reduction of the fracture of the os caléis, no loss of function from the fracture of the pelvis and that “the claim as to any other losses of function under section 36 is denied and dismissed.” The decree was purportedly based on the decision of the reviewing board which entirely supersedes the decision of the single member, is final, and must be upheld if supported by the evidence and free from error of law even though the board could have found otherwise. Brigham’s Case, 348 Mass. 140, 141. The decree does not dispose of the claim for disfigurement which the board expressly found was not proved. It does, however, appear to dismiss, as unproved, loss of other specific functions which were not in issue before the board. See Henderson’s Case, 333 Mass. 491; Bosenquet’s Case, 353 Mass. 364, 365. The “claim as to” a loss of function, not placed in issue, is not extinguished, although proof hereafter may be difficult. The decree is to be modified by striking out the clause quoted above and substituting therefor the words, “the claim for disfigurement is dismissed.” As so modified, the decree is affirmed. Costs are to be determined by the single justice.
So ordered.
