Case of Woolfall

• Decision Date: 01 July 1982
• Citation: 13 Mass.App.Ct. 1070,434 N.E.2d 1309
• Parties: David F. WOOLFALL'S CASE.
• Court: Appeals Court of Massachusetts

Page 1309

434 N.E.2d 1309

13 Mass.App.Ct. 1070

David F. WOOLFALL'S CASE.

Appeals Court of Massachusetts, Suffolk.

Argued April 21, 1982.

Decided May 18, 1982.

Further Appellate Review Denied July 1, 1982.

Albert Auburn, Wellesley, for employee.

Eugene X. Giroux, Weston, for insurer, submitted a brief.

Before GREANEY, CUTTER and DREBEN, JJ.

RESCRIPT.

This is a worker's compensation case in which the employee seeks to recover for a disability in his right hip. He claims that his present condition was caused by his injury in a work related automobile accident which occurred in Massachusetts on April 13, 1972. In view of the employee's relocation after the accident to the State of Washington, the case was submitted by agreement to a single member of the Industrial Accident Board on a record made before the chief hearing examiner of the Board of Industrial Insurance Appeals of the State of Washington. See generally Locke, Workmen's Compensation § 43 (2d ed. 1981). That record consists of the stenographically transcribed testimony of the employee and his physician in Washington and various medical records. The single member made findings of fact and concluded "after evaluating carefully the medical evidence and testimony as a whole ... including all warrantable inferences" (1) that "the employee has failed to prove by a fair preponderance of all the evidence that any subsequent disability he had after June 12th, 1972, was in any way related to his industrial injury of April 13th, 1972"; and (2) that "any disability ... the employee may have incurred in his right hip was not caused by, aggravated, or due to his injury of April 13th, 1972." A reviewing board affirmed and adopted the single member's decision. A judge of the Superior Court entered a judgment affirming the action of the reviewing board. The employee appeals. The sole issue is whether the evidence warrants the findings and conclusions reached by the single member as affirmed and adopted by the board.

It is settled that "the findings and decision of the board are to be sustained wherever possible and ... they are not to be reversed unless they are wholly lacking in evidentiary support or are tainted by errors of law." Sweeney's Case, 3 Mass.App. 284, 286-287, 327 N.E.2d 920 (1975). See Chapman's Case, 321 Mass. 705, 707, 75 N.E.2d 433 (1947); Brek's Case, 335 Mass. 144, 147, 138 N.E.2d 748 (1956); Hale's Case, 4 Mass.App. 769, 340 N.E.2d 921 (1976); Carnute's Case, --- Mass.App. ---, Mass.App.Ct.Adv.Sh. (1980) 1125, 405 N.E.2d 669. "It is the exclusive function of the board to consider and weigh the evidence and to ascertain and settle the facts." McEwen's Case, 369 Mass. 851, 853, 343 N.E.2d 869 (1976), quoting from Chapman's Case, supra. These rules apply with equal force to the question of causation. That question is "one of fact ... within the province of the board to determine" based on the medical evidence, and "(u)nless lacking in evidential support it cannot be disturbed ...." Mahoney's Case, 337 Mass. 629, 632, 150 N.E.2d 729 (1958), and cases cited. Hachadourian's Case, 340 Mass. 81, 85, 162 N.E.2d 663 (1959). Thus, as the primary factfinder, the board decides the probative value of the medical testimony, see Murphy's Case, 328 Mass. 301, 304, 103 N.E.2d 267 (1952); Rennie's Case, 357 Mass. 640, 644, 260 N.E.2d 186 (1970); Locke, Workmen's Compensation, supra § 523, and it has the right to reject medical testimony even though uncontradicted.

The employee was admitted to, and spent three days at, the Norwood Hospital for diagnosis and treatment of injuries sustained in the accident. The injuries treated were apparently confined to the employee's head and left eye, and the hospital records contain no reference to, or diagnosis of, any injury to the employee's right hip. Although the employee testified that he complained about his hip to his wife (who did not testify) a few days after his release from the hospital he made no complaint to a physician until a week or two after the accident. It appears that the employee had lumbar and pelvic X-rays taken on May 11, 1972, and that he received some treatment to his hip by a doctor at the Derry Medical Center in New Hampshire about two months after the accident. There is no indication in the record of any diagnosis made by that medical facility of a specific hip injury. The employee next consulted a physician in Washington in March, 1973, again with no indication in the record of any diagnosis of injury to his hip. In September, 1973, about seventeen months after the accident, he consulted his present physician in Washington, who concluded that he had a torn right hip capsule and ligamentous injury which was likely caused by the accident. This doctor, however, testified that someone incurring a capsular tear would have "pain, swelling, and disability certainly within 12 hours (after the injury), usually more rapidly...