In re Fountaine
| Decision Date | 30 November 1923 |
| Citation | 246 Mass. 513,141 N.E. 594 |
| Parties | FOUNTAINE'S CASE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Hampden County; Nelson P. Brown, Judge.
Proceeding by Frank Fountaine under the Workmen's Compensation Act to obtain compensation for personal injury, opposed by the Farr Alpaca Company, employer, and the AEtna Life Insurance Company, insurance carrier. There was an award of compensation, and a decree of the superior court, ordering payment in accord with the decision of the Industrial Accident Board, and the insurance carrier appeals. Affirmed.
Green & Bennett, of Springfield, for appellant.
Graves & Moran, of Springfield, for appellee.
In this proceeding under the Workmen's Compensation Act, Frank Fountaine, an employee of the Farr Alpaca Company, alleges that on October 21, 1921, he received personal injury arising out of and in the course of his employment. His claim was heard by a single member of the Industrial Accident Board, who, after hearing the evidence, twice found that the injury did not result from the employment, there having been a second hearing because of recommittal. Thereafter a claim for review (filed under G. L. c. 152, § 10), was heard by a board designated under G. L. c. 24, § 3, which board had before it the report of the evidence heard by the single member and his findings and decision based thereon. The decision of the single member was reversed, the reviewing board ‘believing the evidence of the employee, that while working on a pulley in connection with work which he and others had been doing on a machine that had become clogged with wool, [he] was thrown back, striking on his head, arms and body, and received injuries, in the course of and arising out of his employment,’ and finding that the employee was entitled to compensation. The insurer has appealed from the decree entered in the superior court ordering payments in accord with the decision of the board.
The appellant urges that on the record, the decision of the board was not a justifiable review of the decision of the single member, in spite of the conceded existence of ‘some evidence’ to support that conclusion. It asserts that part of the evidence in behalf of the employee, if believed, warranted only a finding that the injury was received in the course of and out of the employment, that other evidence if believed warranted only a finding that the injury arose out of a fall ‘due to * * * [an] internal state of health’; that the uncontroverted evidence as to other facts did not warrant a finding for the employee; and that the testimony of each witness ‘when considered by itself, contained no self-discrediting features such as inconsistencies or improbabilities.’ The insurer's contention is well stated in its brief:
‘The requirements of a ‘review’ make it necessary that the board, in reversing the finding of the single member solely on the ground of a differing estimate of the credibility of the same testimony, and where the rejected testimony is neither self-contradictory nor intrinsically improbable, shall have had before it the witnesses in question, or, at any rate, the participation in its deliberations in review of the single member who heard such testimony and saw the witnesses.'
It further submits that such a finding of reversal ‘must of necessity involve a determination of the credibility of the witnesses, which determination is incapable of rational justification, and is therefore arbitrary.’ The case is considered on the basis that the result of the testimony taken by the single member and before the board upon report is correctly stated by the insurer.
The board did not follow the finding of the single member as to the credibility of the evidence of the employee; it did not hear testimony of witnesses under the power conferred by G. L. c. 152, § 10; and the single member was not assigned to sit in review.
Inasmuch as the Workmen's Compensation Act creates liability and gives relief only where there is a voluntary agreement to be bound thereby, it does not impair fundamental rights. Opinion of the Justices, 209 Mass. 607, 96 N. E. 308. Procedural provisions do not form a part of the contract of employment and are subject to legislative control. Devine's Case, 236 Mass. 588,129 N. E. 414. The decision in this case must be based upon the construction of the statutory provisions creating and defining the rights of employee and employer and the liability of the insurer.
Under the statute as originally enacted, if the insurer and the employee did not reach an agreement in regard to compensation, upon notice of either the Industrial Accident Board directed the formation of a committee of arbitration consisting of three persons, one a member of the board, and the others to be ‘named, respectively, by the two parties.’ The decision of the committee was enforceable unless a claim for review was filed, whereupon the board heard the parties. St. 1911, c. 751, part 3, §§ 5, 6, 7, 10. The next year (St. 1912, c. 571, §§ 12, 13) the committee on arbitration was required to file with the board with its decision ‘a statement of the evidence submitted before it, its findings of fact, rulings of law and any other matters pertinent to questions arising before it,’ and in case of review the provision was made that the board-
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