Duggan's Case

• Decision Date: 31 January 1944
• Citation: 53 N.E.2d 90,315 Mass. 355
• Parties: JOHN J. DUGGAN'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 355

53 N.E.2d 90

JOHN J. DUGGAN'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 31, 1944

October 5, 1943.

Present: FIELD, C.

J., LUMMUS, DOLAN & RONAN, JJ.

Workmen's Compensation Act, Injuries to which act applies; Procedure notice, filing of claim. Proximate Cause. Evidence, Opinion expert.

A finding by a reviewing board in a workmen's compensation case that a preexisting tuberculosis of an employee, who had worked with artificial abrasive wheels for about thirty years including about ten years with the insured employer, had been aggravated as a result of exposure to and inhalation of inorganic dust in the service of the insured and finally brought about a compensable total incapacity, was warranted by a report of industrial disease referees that the employee had shown no symptoms of tuberculosis until about the time of his incapacity, that he did not have silicosis, but that "nevertheless it seems probable that in the past over a period of thirty years, he has inhaled inorganic dusts which may have been sufficient in quantity and of such an irritant nature as to act as an exciting or contributory cause in the extent of his present lung tuberculosis."

An opinion of an expert that a relation probably exists between two facts is evidence warranting a finding that there is such a relation.

A finding by a reviewing board in a workmen's compensation case that the insurer was not prejudiced by the failure of the employee to meet the statutory requirements as to notice and filing of his claim based on total incapacity caused by inhalation of dust from abrasive wheels over a period of years, was warranted where it appeared that the insurer had had the benefit of an examination by its expert as to dust conditions at the place of employment two months before the employee had quit work, that the employee had received adequate medical treatment after he quit work, and that the insurer had made a full investigation of the claim, and it did not appear that it had been deprived of any evidence because of the failure to comply with the statutory requirements.

CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board in a proceeding under the workmen's compensation act.

A decree was entered in the Superior Court by order of Fosdick, J. J. G Leonard, for the insurer.

S. B. Horovitz, (B.

Petkun with him,) for the claimant.

RONAN, J. The employee, a tool maker and general machinist, filed a claim for compensation with the Industrial Accident Board for an injury resulting from the "inhalation of dust which caused, aggravated or hastened a condition of tuberculosis." The single member appointed a board of industrial disease referees who filed a report. The decision of the single member dismissing the claim was superseded by the decision of a reviewing board awarding compensation. The insurer appealed from a decree of the Superior Court ordering the payment of compensation in accordance with the decision of the reviewing board.

There was testimony that the employee spent about three hours a day in grinding tools upon artificial abrasive wheels; that dust from the grinding wheels landed upon his face, glasses and clothes that when he used his handkerchief he noticed black spots upon it; that he observed his sputum was black and brown; that he began to suffer from shortness of breath in May, 1939; that he thereafter had considerable coughing, raised blood and suffered a hemorrhage; that after working for the insured for nine or ten years he was compelled to quit his employment on August 7, 1939; and that he has since been totally unable to work. There was no dispute but that he had pulmonary tuberculosis. There was, however, a conflict in the testimony as to whether his disease was aggravated by his employment. The board considered the report of the referees together with all the other evidence and came to the conclusion that, as a result of exposure to and inhalation of inorganic dust in the service of the insured, the preexisting tuberculosis of the employee was aggravated and has rendered him totally incapacitated since August 7, 1939.

The insurer contends that in view of G. L. (Ter. Ed.) c. 152, Section 9B, inserted by St. 1935, c. 424, and amended by St. 1938, c. 462, the report of the referees was binding upon the parties; that the board should not have considered any evidence upon the issue of a causal relation between the injury and employment other than this report; and that the claim should have been dismissed because the report was insufficient to warrant a finding that the aggravation of the tuberculosis was caused by the employment.

We assume in favor of the insurer that the only evidence that the board should have considered in determining the issue whether the employee's injury arose out of and in the course of his employment was the report of the referees, but, in doing so, we make no intimation whatever that this statute requires the exclusion of all other evidence.

The procedure under the workmen's compensation act is governed in general by the practice in equity. Gould's Case, 215 Mass. 480 . Brown's Case, 228 Mass. 31 . Sterling's Case, 233 Mass. 485 . Perkins's Case, 278 Mass. 294. Liberty Mutual Ins. Co., petitioner, 298 Mass. 75 . Employers' Liability Assurance Corp. Ltd. v. DiLeo, 298 Mass. 401 . The sufficiency of the evidence to support the decision of the board was a question of law which is presented by the appeal from the decree entered in the Superior Court. DiClavio's Case, 293 Mass. 259 . Craddock's Case, 310 Mass. 116 . Sawyer's Case, ante, 75. Judkins's Case, ante, 226.

The referees made a physical examination of the employee, read the hospital records, inspected the X-rays, obtained a full history of his family and of his present illness, viewed his place of employment, investigated the condition in reference to dust which accompanied the performance of his work, ascertained the composition of the grinding wheels which he used and the nature of the dust which was thereby produced, and came to the conclusion that the employee was suffering from a well developed bilateral tuberculosis. While they found that the employee did not have silicosis, they concluded "nevertheless it seems probable that in the past over a period of thirty years, ...