Crowley's Case

• Decision Date: 05 July 1934
• Citation: 287 Mass. 367,191 N.E. 668
• Parties: CROWLEY'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 367

191 N.E. 668

CROWLEY'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

July 5, 1934.

Appeal from Superior Court, Suffolk County; W. A. Burns, Judge.

Proceedings under the Workmen's Compensation Act by Cornelius Crowley, employee, opposed by Houghton & Dutton Company, employer, and the Century Indemnity Company and the Globe Indemnity Company, insurers. From a decree entered in the Superior Court by order of the judge affirming a final decree of the Industrial Accident Board overruling a report of a single member and awarding compensation to the employee against the Century Indemnity Company, the Century Indemnity Company appeals.

Reversed, and decree entered for the Century Indemnity Company, and case recommitted to the Industrial Accident Board.J. D. Goldberg, of Boston, for claimant.

F. J. Hansberry, of Boston, for insurer.

LUMMUS, Justice.

The evidence warranted a finding that the employee ‘strained’ his left groin while pushing a heavy barrel in the course of his employment on Friday, October 30, 1931, at five o'clock in the afternoon. He felt a pain unlike any that he had ever felt before. It felt ‘as though something snapped.’ He complained of the pain to a fellow-workman, but did not stop work, although he ‘took it easy’ for a while. He though ‘that there was nothing serious about it that he had to give up.’ He worked the next day as usual; ‘there was heavy lifting connected with his work right along.’ On the following Monday, November 2, 1931, he began service as a juror which continued until he resumed his employment on December 7, 1931. On December 12, 1931, he suffered severe pain in the same place while lifting a box. On that day he noticed for the first time a swelling in the left groin, not larger than the little finger. It gradually grew larger. He did not stop work, for he had dependents to provide for, and could not afford to stop. He continued to work until he ‘strained’ himself in the same place while lifting the carcass of a lamb off a hook on March 17, 1932, and had to go home for the rest of the day. The next day he resumed work, and worked until April 4, 1932, when he had an operation for hernia. The operation was a success, and he went back to work, cured, on May 31, 1932.

He did not report the incident of October 30, 1931, to any one in authority until he told the ‘boss' about it on March 17, 1932. He did not mention the incident of December 12, 1931, until he made a written report of all the incidents before described to the Century Indemnity Company on April 1, 1932.

The Century Indemnity Company was the insurer until December 1, 1931, and was succeeded as insurer by the Globe Indemnity Company. A single member of the Industrial Accident Board found that the employee received a personal injury, on March 17, 1932, when the hernia ‘manifested itself so that the employee had to give up work,’ and held the Globe Indemnity Company liable. That company filed a claim for review. The reviewing board, reversing the single member (Minns' Case [Mass.] 190 N. E. 843), found (1) that a personal injury was received ‘as a result of the strain of pushing a heavy barrel of spare ribs on October 30, 1931, which brought on a left inguinal hernia and finally totally incapacitated the employee’ the following spring, (2) that the Century Indemnity Company was the insurer at the time of the injury, (3) that the period of incapacity was not prolonged by reason of the failure of the employee to give written notice of his injury until April 1, 1932, or to bring home to the insurer or the insured any form of knowledge or notice until March 17, 1932, and (4) that the insurer was not prejudiced by such want of notice. The Superior Court entered a decree, based on total incapacity, against the Century Indemnity Company, and it appealed. The first, but not the only, contention of the Century Indemnity Company is, that the injury was received after it had ceased to be the insurer, and consequently that it cannot be held.

The time when a personal injury is received, within the meaning of the Workmen's Compensation Act (G. L. [Ter. Ed.] c. 152, § 26), is important in several respects. The injury must be received by the employee ‘in the course of his employment.’ G. L. (Ter. Ed.) c. 152, § 26. An insurer is not responsible unless the period covered by its policy includes ‘the time of the injury.’ G. L. (Ter. Ed.) c. 152, § 26. De Filippo's Case, 284 Mass. 531, 533, 188 N. E. 245. Furthermore, a notice of the injury must be given to the insurer or insured ‘as soon as practicable after the happening thereof,’ although such notice is excused in certain circumstances. G. L. (Ter. Ed.) c. 152, §§ 41-44. Kangas' Case, 282 Mass. 155, 184 N. E. 380. Still further, a claim for compensation ordinarily must be made within six months after the ‘occurrence’ of the injury. G. L. (Ter. Ed.) c. 152, §§ 41, 49. Johnson's Case, 279 Mass. 481, 181 N. E. 761;Gaffer's Case, 279 Mass. 566, 181 N. E. 763.

Our statute does not require that the injury be caused by some definite accident. There may be an accident without injury, and there may be an injury without accident. Hurle's Case, 217 Mass. 223, 226, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919; Madden's Case, 222 Mass. 487, 111 N. E. 379, L. R. A. 1916D, 1000; Mooradjian's Case, 229 Mass. 521, 118 N. E. 951;Sullivan's Case, 265 Mass. 497, 164 N. E. 457, 62 A. L. R. 1458. See, also, G. L. (Ter. Ed.) c. 152, § 19, where the two words are contrasted. Where the injury results from the gradual accumulation in the body of harmful foreign matter, it has been said that ‘a ‘personal injury’ occurs when the accumulation becomes so great as to cause incapacity for work, and not before.' De Filippo's Case, 284 Mass. 531, 534, 188 N. E. 245, 246, and cases cited. See, also, Rousu v. Collins Co., 114 Conn. 24, 157 A. 264;Michna v. Collins Co., 116 Conn. 193, 164 A. 502. An injury may be found to have arisen out of and in the course of the employment, although it cannot be shown to have originated in any definite incident or at any definite time. Bean's Case, 227 Mass. 558, 116 N. E. 826;Mills' Case, 258 Mass. 475, 155 N. E. 423;Jarvis's Case, 274 Mass. 305, 174 N. E. 484;Slocombe's Case, 285 Mass. 31, 188 N. E. 603. The legal time of occurrence of such an injury has not been definitely adjudicated. Perhaps the time when the injury became manifest would govern, for some purposes at least. In one such case the Industrial Accident Board, for the purpose of beginning the payments to dependents, was said to be ‘justified in taking the date when the hernias caused the employee to give up work as the date of the injury.’ Atamian's Case, 265 Mass. 12, 16, 163 N. E. 194, 195. See, also, Harrington's Case, 285 Mass. 69, 188 N. E. 499.

Difficulty arises, however, even when the incapacity can be traced to a happening at a single moment of time. Manual labor not infrequently involves strains, scratches and bruises, deemed trivial at the time, which sometimes have the most serious consequences, often considerably delayed. In many such cases an employee in practice gives no notice of the injury. The practical difficulty which arises from the statutory duty of the employee to give notice of the injury ‘as soon as practicable after the happening thereof’ (G. L. [Ter. Ed.] c. 152, § 41), is not great, even though it be held that an apparently trivial hurt is still an injury within the act. Under similar language, it has been held in England that it is not ‘practicable’ and therefore not required for an employee to give notice of an injury while he reasonably considers it so trivial that there is no likelihood that it will ever become compensable. Fenton v. Owners of Ship Kelvin, (1925) 2 K. B. 473; Albison v. Newroyd Mills, Lim., 95 L. J. K. B. 667; Sharrod v. Warwickshire Coal Co., 22 B. W. C. C. 599. Our own decisions point in the same direction. Carroll's Case, 225 Mass. 203, 114 N. E. 285; Duffy's Case, 226 Mass. 131, 135, 136, 115 N. E. 248; Levangie's Case, 228 Mass. 213, 218, 117 N. E. 200;De Felippo's Case, 245 Mass. 308, 139 N. E. 543;Moore's Case, 249 Mass. 173, 176, 143 N. E. 899. See, also, Brackett's Case, 126 Me. 365, 138 A. 557. In such cases no notice is required until a compensable incapacity becomes likely, and the employee need not resort to the statutory provisions dispensing with notice when there is knowledge or want of prejudice. G. L. (Ter. Ed.) c. 152, § 44. Kangas' Case, 282 Mass. 155, 184 N. E. 380. Neither is there any difficulty in such cases as to the requirement of making ‘claim for compensation with respect to such injury * * * within six months after its occurrence.’ G. L. (Ter. Ed.) c. 152, § 41. Failure to do so does not bar proceedings if ‘it was occasioned by mistake or other reasonable cause’ (G. L. [Ter. Ed.] c. 152, § 49); and a reasonable opinion that the injury is trivial has been held ‘reasonable cause.’ Shotts Iron Co. Ltd. v. Fordyce, (1930) A. C. 503.

The difficulties in the way of holding that a scratch, bruise or lesion apparently trivial does not constitute a ‘personal injury,’ but that the injury occurs only when the incapacitating consequences become manifest, are much greater. An employee who ‘receives a personal injury arising out of and in the course of his employment * * * shall be paid compensation by the insurer * * * if his employer is an insured person at the time of the injury.’ G. L. (Ter. Ed.) c. 152, § 26. If an apparently trivial bruise or wound were held not to be an ‘injury’ within the act until more serious consequences appear, the employee sustaining it would be remediless if, before such consequences appear, he should leave the employment, or his employer should cease to be insured under the act. Upon the same view, a new or succeeding insurer, becoming such after the bruise or wound has been received, but before its more serious consequences appear, would be liable, although there is no...