in re Meley

• Decision Date: 23 October 1914
• Citation: 219 Mass. 136,106 N.E. 559
• Parties: In re MELEY. In re MASSACHUSETTS EMPLOYEES' INS. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 136

106 N.E. 559

In re MELEY. In re MASSACHUSETTS EMPLOYEES' INS. ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

October 23, 1914

COUNSEL

Currier, Young & Pillsbury, of Boston (Samuel H Pillsbury and Henry C. Tuttle, both of Boston, of counsel), for appellant.

Francis J. Horgan and John F. Barry, both of Boston, for appellee.

OPINION

SHELDON J.

It is admitted that compensation rightly was awarded to Meley for a total incapacity to work. Sullivan's Case, 218 Mass. 141 105 N.E. 463. The only question raised upon the insurer's appeal is whether he was entitled to pay and what additional compensation for the injuries to his hands under the provisions of the workmen's compensation act, St. 1911 c. 751, part 2, § 11, as amended by St. 1913, c. 445. This amendment provides that the additional amounts to be paid 'in case of the loss of a hand, foot, thumb, finger or toe,' shall also be paid 'in case the injury is such that the hand, foot, thumb, finger or toe is not lost but is so injured as to be incapable of use; provided, that when the incapacity ceases the said additional payment shall also cease.' The insurer contends that the words 'incapable of use' require a total incapacity for use. Assuming this to be so, it has been found by the industrial accident board, affirming the findings of the committee of arbitration, that the right hand of this employé 'has been so injured as to be incapable of use,' and that the incapacity is permanent. If this finding was warranted upon the evidence, it is conclusive. Herrick's Case, 217 Mass. 111, 104 N.E. 432; Bentley's Case, 217 Mass. 79, 104 N.E. 432. We cannot say that it was unwarranted. The hand was cut across and most of the fiexor tendons were severed. Those in the thumb were cut. A physician testified that the hand was permanently disabled. The board was not required to accept as decisive the testimony of the physician called by the insurer. Even that testimony went little farther than to say that some things might be carried on the thumb as a hook, and that a steel splint might be used which would not hurt the hand, and that this would be much better than amputation. But we find no evidence that even with such an appliance there would be any real ability to use the hand. Certainly it could be found that the normal use of the hand was wholly gone, and so that the hand was 'so injured as to be incapable of use.' The incapacity of use need not be tantamount to an actual severance of the hand; it is enough that the normal use of the hand has been taken entirely away. This is the reasoning of Garcelon v....