Foley's Case
| Decision Date | 30 October 1970 |
| Citation | 263 N.E.2d 471,358 Mass. 230 |
| Parties | Dennis J. FOLEY'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward L. Donnellan, Springfield, for employee.
Gerard L. Pellegrini, Springfield, for self-insurer.
Before SPALDING, CUTTER, KIRK, SPIEGEL, REARDON and QUIRICO, JJ.
This is an appeal from a final decree of the Superior Court dismissing a claim for compensation under G.L. c. 152, § 34A, on the ground that the 'employee has failed to sustain the burden of proving that he was permanently and totally disabled as claimed.' The case has been before us on another issue stemming from an earlier claim for compensation under G.L. c. 152, § 35. See Foley's Case, 344 Mass. 456, 183 N.E.2d 113.
On July 3, 1950, the employee sustained injury to his right shoulder while working for the United States Rubber Company (self-insurer) in its Chicopee plant, as a result of which he underwent surgery to his right shoulder. He received total disability compensation from July 12, 1950, to July 12, 1954, when he returned to work with the self-insurer on a restricted job. From July 12, 1954, to December 15, 1954, he was paid partial compensation. He continued his employment with the self-insurer until October 23, 1959, when he reached the mandatory retirement age of sixty-five. In 1960, at a hearing before a single member of the Industrial Accident Board, it was determined that the employee was partially incapacitated. The record before us in Foley's Case, supra, contained reference by the single member in the 1960 hearing to an evaluation of the employee's rights under G.L. c. 152, § 36, in 1956 when 'he was considered to have a 60% loss of use of his arm.' The record of the 1960 hearing was made a part of the 1964 hearing from which this appeal arises and was incorporated by reference therein. The employee did not seek review of the 1960 determination of incapacity by the single member, and the self-insurer paid partial compensation to him until April 7, 1962, when the statutory maximum of $10,000 was reached. See G.L. c. 152, §§ 34, 35. What is before us comes from the endeavor of the employee to seek further compensation under G.L. c. 152, § 34A. The single member, following a hearing on this claim on August 6, 1964, found total and permanent disability and ordered the self-insurer to pay the employee $30 a week retroactive to April 7, 1962. The reviewing board, with one minor change, adopted the findings and decision of the single member. The employee died shortly thereafter and a suggestion of death was duly filed by his attorney.
The findings of the reviewing board are to be accepted as final if they are supported by the evidence, including all rational inferences which could be drawn therefrom, and if not tainted by error of law. Frennier's Case, 318 Mass. 635, 638--639, 63 N.E.2d 461; Amello's Case, 320 Mass. 347, 348, 69 N.E.2d 453; Paltsios's Case, 329 Mass. 526, 528, 109 N.E.2d 163; LaFlam's Case, 355 Mass. 409, 245 N.E.2d 413. We are of opinion in this case that the decision of the reviewing board was error and that the Superior Court acted properly in dismissing the claim. Our review of the transcript of the testimony at the 1964 hearing leads us to conclude that it does not support the single member's finding that the employee is 'totally disabled...
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