322 Mass. 581 | Mass. | 1948
The employee, after working for more than twenty years as a truck driver for the insured, a lumber dealer, although for the last five years one fourth of his time was spent in repairing and painting property owned by the employer, became ill and was compelled to quit his employment in November, 1942. After painting he would wash the paint from his hands and forearms with a paint remover or thinner. He was confined to a Boston hospital for a little more than a week in March, 1943, and for three days in June, 1943. He died in a Needham hospital in July, 1943. The insurer has appealed from a decree of the Superior Court awarding compensation, costs, and counsel fees and expenses amounting to $750.
The cause of death, as stated in the record of the Needham hospital and concurred in by all the medical testimony, was aplastic anemia due to benzol poisoning. The finding of the board to this effect is amply supported by the evidence and cannot be reversed. Flaherty’s Case, 316 Mass. 719, 722. Chapman’s Case, 321 Mass. 705, 707. The insurer contends that, as no analysis was made of the preparation which the employee used to remove paint from his hands and arms and there being no evidence as to the composition of this preparation or any proof that it contained benzol, a causal connection between the employment and the death of the employee has not been shown.
The evidence, none of which was objected to, would warrant the following findings of facts. The physician at the Boston hospital who treated the employee was chief of the blood clinic and apparently was thoroughly familiar with benzol poisoning cases. By a series of tests he eliminated the causes for the poisoning with which the employee was afflicted excepting that it was of chemical origin. He
This hospital physician, whose qualifications as an expert were not questioned, and the family physician both expressed the opinion that the benzol poisoning came from the thinner which the employee had used in his work. These opinions do not rest upon conjecture or surmise.
At one time, while the claimant waited to drive the employee home after he finished washing his hands and arms, she asked him whether what he was using was a fuel oil and he replied that it was not but that it was a paint remover and a paint thinner. She had seen him use this paint remover or thinner a good many times. His two daughters testified that he told them that he used a paint remover or thinner to remove paint from his hands.
When once it was established, as it was here, that the employee was suffering from benzol poisoning, it necessarily followed that he must have come in contact with benzol. Whatever painting he did before he quit his employment was done for the insured, and it could be found that he did none afterwards. There was no place outside of his employment where he would or did come in contact with benzol. On the other hand, he could have been found to have used a paint thinner as a substitute for turpentine, and this thinner in common with all such substitutes had a naphtha base containing ten per cent of benzol. The particular disease which afflicted the employee could only be attributable to a particular kind of irritant. The nature and contents
The case is distinguishable from Doherty’s Case, 222 Mass. 98, where a linotype operator who claimed to be suffering from lead poisoning failed to show the, composition of .the type upon which he worked, and from Breault’s Casey 270 Mass. 256, where an employee who for years had been suffering from lead poisoning was properly, .found by the board to have been.so suffering but there was no evidence warranting a finding that during the eight weeks he was employed by the insured he was exposed to lead,
The claim was not filed until March 30, 1945. An award is not barred by want of notice of injury or the failure to file a claim within the time prescribed by statute where the claimant shows that the insurer was not prejudiced by the delay. G. L. (Ter. Ed.) c. 152, §§ 41, 44, 49. There is no
The decree entered in the Superior Court provided for the payment of $750 for attorney’s fees, briefs and other necessary expenses resulting from certification to that court. This provision of the decree follows the phraseology of G. L. (Ter. Ed.) c. 152, § 11A, inserted by St. 1945, c. 444. That amount was awarded for legal services and expenses rendered in connection with the certification from the board to the Superior Court. Until this amendment ,to c. 152, the amount of fees of attorneys, like those of physicians, and of charges of hospitals for services rendered under said chapter, was subject to the approval of the board. See G. L. (Ter. Ed.) c. 152, §§ 10, 13; Gritta’s Case, 241 Mass. 525; Silva’s Case, 305 Mass. 380; Whittaker’s Case, 319 Mass. 582. The fixing and approval of such fees and charges were incidental to the establishment of awards to injured employees or their dependents, and it was thought wise to leave such matters to the board charged with the administration of the workmen’s compensation act so that there would be no interference with accomplishing the main and principal object of the act, which is to confer its beneficial advantages upon those who have sustained a loss because of an industrial accident. The fixing of fees and charges was for the protection of these statutory beneficiaries.
There may be strength in the insurer’s contention that the award is too high,, for it is. difficult to see from a general view of the situation how the reasonable value of the services rendered in connection with the hearing in the Superior Court could approximate the figure mentioned in the decree.
The matter of allowance of attorney’s fees, briefs and expenses in this court will be settled by a separate order of a single justice upon presentation of an itemized list of the expenses.
Decree affirmed.