Haley's Case

Decision Date03 February 1970
Citation356 Mass. 678,255 N.E.2d 322
PartiesJoseph HALEY'S CASE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert J. Moran, Springfield, for employee.

Paul A. Murphy, Hingham, for insurer.

Before SPALDING, CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

QUIRICO, Justice.

The employee in this workmen's compensation case received an injury to his back on November 20, 1963, while employed as a wire drawer at an average weekly wage of $140.58. He received total incapacity compensation until January 5, 1964. He then returned to work for the same employer as a sweeper at an average weekly wage of $91.40. He held this job until November 15, 1965, when he resumed his regular work as a wire drawer. He is claiming partial incapacity compensation for the period of time he worked as a sweeper. After a hearing the single member found that the employee was partially incapacitated from the date he returned to work on January 6, 1964, to February 28, 1964, and awarded him partial incapacity compensation for that period. Concerning the period from February 28, 1964, to November 15, 1965, the single member found that 'the employee has failed to sustain the burden of proving that he was incapacitated for work or that any alleged incapacity was causally related to the injury of November 20, 1963'; and he denied the employee any compensation for that period.

The employee claimed a review of the single member's decision. After a hearing the reviewing board affirmed and adopted the decision of the single member as its own decision. The board heard to witnesses, but it had before it a verbatim transcript of all the testimony and of the only exhibit introduced in evidence before the single member. The board ordered the insurer to pay the partial incapacity compensation as awarded by the single member, and denied and dismissed the claim as to the period after February 28, 1964. The decision of the reviewing board entirely supersedes that of the single member. Ricci's Case, 294 Mass. 67, 200 N.E. 568. Since the board merely affirmed and adopted the decision of the single member as its own decision, we must look to the single member's decision in order to determine whether the action of the board is correct.

The case was certified to the Superior Court by the employee. After hearing, the court entered a final decree to the effect that the employee had failed to sustain his burden of proving partial incapacity for the period in question, or that any alleged incapacity was causally related to the injury of November 20, 1963, and it denied and dismissed the claim for that period. The employee appealed from that decree to this court.

On judicial review the decision of the board must be accepted as final, if supported by the evidence and not tainted by error of law. Roney's Case, 316 Mass. 732, 734, 56 N.E.2d 859; Webb's Case, 318 Mass. 357, 358, 61 N.E.2d 340; Sulham's Case, 337 Mass. 586, 589, 150 N.E.2d 273; Look's Case, 345 Mass. 112, 114, 185 N.E.2d 626; Ritchie's Case, 351 Mass. 495, 496, 222 N.E.2d 687; Whitaker's Case, 354 Mass. 4, 5, 234 N.E.2d 723; Korsun's Case, 354 Mass. 124, 125, 235 N.E.2d 814. The record before us includes the same evidence which was before the single member and later before the board. The evidence on the issue whether the employee was partially incapacitated from February 28, 1964, to November 15, 1965, was conflicting. The board had the responsibility of deciding the preliminary questions of credibility and weight of the evidence, and the court cannot review those decisions. However, if the board's ultimate decision results in whole or in part from an error of law to the prejudice of the appealing party, the court may take whatever action is necessary to correct the error and prevent injustice.

The decision of the reviewing board in this case was tainted by legal error. The error originated with the single member. The same error taints the decision of the board because the board affirmed and adopted 'the findings and decision of the single member' without change. The error involves the board's consideration and use of information and facts not introduced in evidence, in arriving at its decision. The transcript shows that on February 28, 1964, the employee was examined by a Dr. Frank E. Hurley at the request of the employer or the insurer. There is no evidence that Dr. Hurley made the examination and report as an 'impartial physician' under G.L. c. 152, § 9. A copy of the report was in the possession of the employer's plant nurse when she testified before the single member. Counsel for the employee attempted to incorporate a statement from the report in a question which he put to the plant nurse. Counsel for the insurer objected, and the objection was sustained. Counsel for the employee excepted and made an offer of proof, but the record does not state what the offer of proof was. Neither Dr. Hurley's report nor any of its contents ever became a part of the evidence in this case. Despite that, the decision of the single member, which the board affirmed and adopted as its own, contained a lengthy reference to, and quotation from Dr. Hurley's examination and report. 1 The decision shows that the single member and the board accepted Dr. Hurley's opinion that the employee's partial disability terminated on February 28, 1964, which was the date of the examination; and it denies any compensation after that date. Both the single member and the board went outside of the evidence before them in arriving at their decision.

Parties to proceedings before a single member or a reviewing board under G.L. c. 152, §§ 8 and 10, are entitled to a hearing at which they have an opportunity to present evidence, to examine their own witnesses and to cross-examine witnesses of other parties, to know what evidence is presented against them and to an opportunity to rebut such evidence, and to argue, in person or through counsel, on the issues of fact and law involved in the hearing. They are then entitled to a decision based on the evidence presented at the hearing. Nothing can be considered or treated as evidence which is not introduced as such. Although the board is an administrative body, and not a court, its decisions partake of the nature of a court's decisions. Casieri's Case, 286 Mass. 50, 55, 190 N.E. 118. Constitutional due process requirements apply to board hearings and decisions. Meunier's Case, 319 Mass. 421, 426-427, 66 N.E.2d 198. In Carroll's Case, 225 Mass. 203, 208-209, 114 N.E. 285, the court reversed a decision of the Industrial Accident Board because it was based in part on 'some correspondence and interviews' which did not appear in the record of the case. This rule that the decision on a workmen's compensation claim may not be based on facts not introduced in evidence at the hearing prevails in many other jurisdictions. Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598; Brown-Pacific-Maxon Co. v. Toner, 255 F.2d 611 (7th Cir.); Carstens v. Pillsbury, 172 Cal. 572, 158 P. 218; Henry Cowell...

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