12 Mass. App. Ct. 154 | Mass. App. Ct. | 1981
This case involves a claim for workmen’s compensation. The principal issue is whether the Commercial Union Assurance Company (which was the insurer for the employer James J. Gallery, Inc., up to November 1, 1966, on which date the employer became a self-insurer) or the employer-self-insurer was on the risk. The determination of that question turns on whether the employee sustained an in
Rather than attempt to paraphrase the concise findings of the single member, which all parties agree are supported in the record, we set them out verbatim except for one paragraph dealing with the timeliness of the notice and whether the employee had filed a proper claim.
“I find that the employee is sixty-five years of age; that he is a high school graduate; that most of his adult working life was spent in meat processing; that he worked for General Foods as warehouse manager; that he began work for J. J. Gallery, Inc. in 1950; that at the time he was injured in 1964 he was a working foreman; that he facilitated the movement of frozen foods from warehouse to trucks; that on August 26, 1964 a pallet fell on his right foot and fractured a toe; that he
“I further find and rule that because of the employee’s age, work experience and education, the injury and subsequent aggravation he suffered has totally disabled him from doing work on the open labor market.”
1. The parties are in agreement that the board was warranted in finding that the employee’s preexisting condition was aggravated by standing and walking on concrete floors from 1966-1976. The question here is whether on the facts found by the single member and adopted by the board, the aggravation of the employee’s condition was the result “of a series of specific stressful episodes” or whether it was “the result of everyday stress or ‘[b]odily wear and tear resulting from a long period of hard work.’” See Albaneses Case, 378 Mass. 14, 18 (1979).
In support of their argument that there was a personal injury within the meaning of the act, the insurer and the em
The judge, properly recognizing the question as close, ruled that the case was governed by such authorities as Spalla’s Case, 320 Mass. 416, 418 (1946) (“[b]odily wear and tear resulting from a long period of hard work is not a compensable injury, even if it diminishes capacity to earn”); Burns’s Case, 266 Mass. 516, 518 (1929) (heart weakened by disease; no sudden injury or peculiar strain); Reardon’s Case, 275 Mass. 24, 27 (1931) (a contracture of the hand marked by “the gradual breaking down of tissue as the result of many years of continuous labor”); Belezarian’s Case, 307 Mass. 557 (1940) (gradual wearing out of tissue due to heavy shoe factory work as a laster); Costa’s Case, 333 Mass. 286, 289 (1955) (no evidence that the employee sustained a specific injury subsequent to initial injury and first of three successive insurers held to be on the risk).
While the concept of wear and tear has been narrowed since it was enunciated in Maggelet’s Case, it has not been overruled,
2. The employee argues that the judge erred in failing to apply G. L. c. 152, § 35B, inserted by St. 1970, c. 667, § 1, effective February 1, 1971.
In view of the foregoing conclusions, we need not consider the other questions which have been argued.
Judgment affirmed.
The self-insurer has appealed “to protect its rights to argue the issues of disability, notice, etc., while urging affirmation of the Superior Court’s major findings. ”
This injury is of no significance in the present case.
Cases which have been cited by the employee and insurer which involve the presence of noxious conditions (a class which could well include the Pell case, supra) are inapposite, because as the judge noted, such conditions are not present here. See e.g. Duggan’s Case, 315 Mass. 355 (1944); Kulig’s Case, 331 Mass. 524 (1954); Casey’s Case, 6 Mass. App. Ct. 859 (1978).
See Locke, Workmen’s Compensation § 175 (1981), which contains an excellent discussion of the “wear and tear” principle and suggests that it should be overruled. Until such time as that might occur by either legislative or judicial action (as to which see Begins Case, 354 Mass. 594, 597 [1968]), we are bound by the principle. See Burke v. Toothaker, 1 Mass. App. Ct. 234, 239 (1973).
Section 35B reads in pertinent part: “An employee who has been receiving compensation under this chapter and who has returned to work for a period of not less than two months shall, if he is subsequently injured and receives compensation, be paid such compensation at the rate in effect at the time of the subsequent injury whether or not such subsequent injury is determined to be a recurrence of the former injury; provided, that if compensation for the old injury was paid in a lump sum, he shall not receive compensation unless the subsequent claim is determined to be a new injury.”