In re Levangie

• Decision Date: 19 September 1917
• Citation: 228 Mass. 213,117 N.E. 200
• Parties: In re LEVANGIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 213

117 N.E. 200

In re LEVANGIE.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 19, 1917.

Appeal from Superior Court, Suffolk County.

Proceeding under the Workmen's Compensation Act by Thomas Levangie, employé, to obtain compensation for personal injuries, opposed by the Contractors' Mutual Liability Insurance Company, insurer. Compensation was awarded by the Committee of Arbitration, and confirmed by the Industrial Accident Board, and the insurer appeals. Decree reversed and decree entered in favor of the insurer.

Norman F. Hesseltine and J. Frank Scannell, both of Boston, for appellant.

Sawyer, Hardy, Stone & Morrison, of Boston (Gay Gleason, of Boston, of counsel), for appellee.

PIERCE, J.

May 19, 1913, the employé, a carpenter in the employment of Simpson Bros. Corporation, a subscriber, slipped and fell backward from a staging a distance of about 14 feet, thereby receiving a physical injury which the insurer admits arose out of and in the course of the employment.

The facts present a typical history of a fractured spine caused by an accident. Ever since the accident the legs of the employé have been paralyzed from above the hips down and have been absolutely without sensation or power. From the time of the injury the employé has been practically bedridden and is and has been absolutely incapacitated for any work which requires moving legs. ‘Aside from the complete paralysis of his legs (and sphincters) he is apparently in excellent health.’ At the hearing before the committee in answer to the question, ‘You knew your back was broken?’ the employé testified: ‘I know now. I knew my back was fractured, but people time and again came to my bed and told me that people were the way I was and come through all right, so I lived in that hope.’ He further testified: ‘I never expected to use them as before I injured them;’ ‘I always had hopes they would come around all right,’ and thought as late as June 16, 1916, ‘I would get on crutches, and finally get better so I could walk around a little bit.’ To the question, ‘That was your hope?’ he answered, ‘Yes.’

Shortly after the accident the insurer and the employé reached an agreement in regard to compensation for the period of total disability to begin June 2, 1913. This agreement was filed with the Industrial Accident Board and was approved by it upon June 30, 1913. Workmen's Compensation Act (St. 1911, c. 751) pt. 3, § 4, as amended by St. 1912, c. 571, § 9. Subsequently a decree in the superior court was entered thereon. St. 1911, c. 751, pt. 3, § 11, as amended by St. 1912, c. 571, § 14. Since June 30, 1913, payments have been made uninterruptedly to the employé in performance of the terms of the agreement of compensation.

June 16, 1916, the Industrial Accident Board refused to approve an agreement to accept a lump sum payment of $1,100 in addition to $1,490 then already received, in redemption of the liability of the insurer for all subsequent weekly payments, because not satisfied that the proposed settlement was for the best interest of the employé or his dependents. St. 1911, c. 751, pt. 2, § 22, as amended by St. 1914, c. 708, § 8. Upon the solicitation of a former member of the Industrial Accident Board to be permitted ‘to handle’ on a percentage basis the claim of the employé, the employé signed a contract to that end and thereafter on September 13, 1916, filed with the Industrial Accident Board a ‘Notice of Failure of Parties to Reach an Agreement,’ the cause of the disagreement being given as the ‘refusal of insurer to pay specific compensation for the loss of the use of both legs.’ St. 1911, c. 751, pt. 3, § 5, as amended by St. 1912, c. 571, § 10, and St. 1914, c. 708, § 9. At the request of the employé the Industrial Accident Board called a committee of arbitration which met on Saturday, October 7, 1916, and again by adjournment on October 21, 1916, and proceeded to take testimony notwithstanding the objection of the insurer that the committee was without jurisdiction in the case.

[2] No claim for compensation was filed by the employé with the Industrial Accident Board previous to the hearing before the committee of arbitration. A claim for compensation, defective and inadequate because of its failure to set out the cause of the fall from which the injury resulted, was filed with the Industrial Accident Board October 30, 1916.

The act, in part 2, § 15, provides that:

‘No proceedings for compensation for an injury * * * shall be maintained * * * unless the claim for compensation with respect to such injury shall have been made within six months after the occurrence of the same; or, * * * in the event of his physical or mental incapacity, within six months after * * * the removal of such physical or mental incapacity.’

The formal and essential requisites of such a claim as set out in part 2, § 23, amended by St. 1912, c. 571, § 5, are that:

‘The claim for compensation shall be in writing and shall state the time, place, cause and nature of the injury; it shall be signed by the person injured or by a person in his behalf, or, in the event of his death, by his legal representative or by a person in his behalf, or by a person to whom payments may be due under this act or by a person in his behalf, and shall be filed with the Industrial Accident Board. The failure to make a claim within the period prescribed by section 15 shall not be a bar to the maintenance of proceedings under this act if it is found that it was occasioned by mistake or other reasonable cause.’

In support of the authority of the Industrial Accident Board to call the committee of arbitration before the filing of any claim for compensation with the Board, the employé contends that the inhibition of the act that ‘no proceedings for compensation for an injury * * * shall be maintained * * * unless' a written claim shall have been made within the time provided by the act, has been waived by the agreement of the insurer to pay compensation, the approval of such agreement by the Industrial Accident Board, and the decree of the superior court based on this agreement. The answer to this position is that the Industrial Accident Board is not a court of general or limited common-law...