In re Dow

• Decision Date: 17 April 1925
• Citation: 252 Mass. 191,147 N.E. 548
• Parties: DOW'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

252 Mass. 191

147 N.E. 548

DOW'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

April 17, 1925.

Appeal from Superior Court, Suffolk County; Henry T. Lummus, Judge.

Proceeding under the Workmen's Compensation Act by George A. Dow, claimant, opposed by Nelson Bros., the employer, and the Maryland Casualty Company, the insurer. From a decree of the Compensation Board, affirming the finding of total disability for certain period, by the single member, the insurer appeals. Affirmed.

E. I. Taylor, of Boston (W. H. Tribou, of Boston, of counsel), for appellant.

S. B. Horovitz, of Boston (R. M. Gardiner, of Boston, of counsel), for appellee.

RUGG, C. J.

The employee received a severe injury arising out of and in the course of his employment for a subscriber under the Workmen's Compensation Act (G. L. c. 152). The single member found that the employee was totally disabled during the period here in question as a result of his injury. This finding was affirmed by the board on review. The evidence on this point was somewhat in conflict. It was found that the ‘man can do any work on the level but that is all.’ Other evidence shows that this means that he had great difficulty in raising his head or arms. It also was found that the employee ‘has done everything possible to use whatever earning capacity he has * * * and will continue to look for such work as he is able to do.’ It may be that there is no work to be obtained which the employee is capable of doing without raising his head or arms. This apparently is the purport of the finding of the board. The case at bar is distinguishable from Durney's Case, 222 Mass. 461, 111 N. E. 166, and Capona's Case, 239 Mass. 332, 132 N. E. 32, in this particular. At all events although the case is close we cannot say that the finding is unsupported by evidence. Therefore it comes within the general rule that the finding of the board will not be disturbed when there is any evidence to support it. Pass' Case, 232 Mass. 515, 122 N. E. 642;Johnson's Case, 242 Mass. 489, 136 N. E. 563.

The appeal of the insurer cannot be said on this record to have been prosecuted ‘without reasonable ground’ within the meaning of G. L. c. 152, § 14. There is nothing to indicate waiver by the insurer of the right to appeal, nor are there any facts which work an equitable or legal estoppel against it.

Decree affirmed.