In re Kangas

• Decision Date: 20 February 1933
• Parties: KANGAS' CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 155

184 N.E. 380

KANGAS' CASE.

Supreme Judicial Court of Massachusetts, Worcester.

Feb. 20, 1933.

Appeal from Superior Court, Worcester County; Whiting, Judge.

Proceeding under the Workmen's Compensation Act by Jennie A. Kangas, claimant, opposed by the Roubaix Mills, employer, and the Maryland Casualty Company, insurer. From a decree of the Superior Court dismissing the claim after the Industrial Accident Board awarded compensation, claimant appeals.

Affirmed.

M. M. Taylor, of Worcester, for claimant.

G. F. Garrity, of Boston (H. B. White, of Boston, of counsel), for insurer.

LUMMUS, Justice.

The claimant, on June 20, 1925, received an injury from overexertion in turning an overhead wheel, which, because of her tubercular condition, produced immediately a hemorrhage from the lungs. See Langford's Case, 278 Mass. 461, 463, 180 N. E. 228. The Industrial Accident Board awarded compensation, but the superior court dismissed the claim on the ground that no written notice of the injury was given ‘to the insurer or insured as soon as practicable after the happening thereof’ (G. L. [Ter. Ed.] c. 152, §§ 41, 44), and there was no affirmative evidence to warrant a finding ‘that the insurer, insured or agent had knowledge of the injury’ within the time allowed for giving such written notice (Walkden's Case, 237 Mass. 115, 129 N. E. 396), or a finding that ‘the insurer was not prejudiced by such want of notice,’ either of which would have enabled the proceedings to be maintained notwithstanding the failure to give written notice. G. L. (Ter. Ed.) c. 152, § 44; Dorney's Case, 259 Mass. 350, 156 N. E. 718;Movitz's Case, 266 Mass. 153, 165 N. E. 21. A somewhat similar provision as to the failure seasonably to file a claim for compensation is found in G. L. (Ter. Ed.) c. 152, § 49.

The only evidence tending to dispense with written notice consisted of testimony that after the claimant had turned her wheel and stopped her loom, and had begun to bleed profusely, one Thompson, the ‘second boss,’ came to the water faucet where she was and advised that she be taken home; and that she did not try to return to work for a month or more, and when she went back to the same employer to obtain work she was not given employment.

Even if Thompson's knowledge could be found to be that of the insured (Walkden's Case, 237 Mass. 115, 117, 129 N. E. 396;Bergeron's Case, 243 Mass. 366, 137 N. E. 739), he had knowledge only of a homeorrhage, a common incident of the claimant's disease, and not of an ‘injury’ within the Workmen's Compensation Act. Matter of Bloomfield v. November, 223 N. Y. 265, 119 N. E. 705;Matter of Combes v. Geibel, 226 N. Y. 291, 123 N. E. 452;Dorney's Case, 259 Mass. 350, 156 N. E. 718, is plainly distinguishable. The claimant must, therefore, rest her case upon the ground that the insurer was not prejudiced.

Want of notice of an injury may prejudice an insurer by preventing an investigation of the applicability of the Workmen's Compensation Act, and of the nature and extent of any injury, while the witnesses are still available with memories unfaded and minds uncolored by partisanship. Furthermore, although an employee has a right to be treated by his own physician (G. L. [Ter. Ed.] c. 152, § 30), provisions for medical examination (G. L. [Ter. Ed.] c. 152, § 45) and medical treatment (G. L. [Ter. Ed.] c. 152, § 30) by the insurer remain in the statute and want of notice may prejudice the insurer by preventing prompt diagnosis and treatment, and consequent speedy and perfect recovery, where the employee is not in fact receiving proper treatment. Burvill v. Vickers, Ltd. [1916] 1 K. B. 180, 188, (1915) W. C. & Ins. Rep. 563, 568, 569, 9 B. W. C. C. 50, 58. Matter of Combes v. Geibel, 226 N. Y. 291, 123 N. E. 452. The question is whether the superior court was right in ruling that there was no evidence that ‘the insurer was not prejudiced by such want of notice.’

The burden of proof, as the statute plainly indicates, is on the claimant to show that the insurer was not prejudiced by the want of notice. Johnson's Case, 279 Mass. 481, 181 N. E. 761;Gaffer's Case, 279 Mass. 566, 181 N. E. 763. For a collection of authorities, see note in 78 A. L. R. 1269-1280, 1284. In Hydmann v. Permier Accumulator Co., Ltd., 85 L. J. K. B. 1037, 1041, 114 Law Times Reports, 1065, 1067, (1916) W. C. & Ins. Rep. 167, 171, 9 B. W. C. C. 384, 389, 390, 14 N. C. C. A. 647, 666, Lord Loreburn said: ‘When an issue arises as to whether the employer was prejudiced or was not prejudiced by want of notice, it is just like any other issue of fact. * * * The applicant has to prove his case, as everyone has to prove his case who brings it forward in a court of justice; but he is not required to exhaust the possibilities of prejudice and displace them, nor is he bound to demonstrate the negative.’ The circumstances, without evidence directed to disproving particular forms of prejudice, may of themselves warrant an inference by the Industrial Accident Board of want of prejudice; but there is no presumption requiring such inference in the absence of affirmative evidenceof prejudice. Where the statute plainly puts the burden of proof on the claimant, it would be unusual to create by judicial ruling a general presumption in her favor.

In cases in which the insurer, or the employer and through him presumptively the insurer, had informal notice of the injury at an early date, a finding...