In re Septimo

• Decision Date: 14 December 1914
• Citation: 219 Mass. 430,107 N.E. 63
• Parties: In re SEPTIMO. In re BOSTON RUBBER SHOE CO. In re MASSACHUSETTS EMPLOYEES' INS. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 430

107 N.E. 63

In re SEPTIMO. In re BOSTON RUBBER SHOE CO. In re MASSACHUSETTS EMPLOYEES' INS. ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 14, 1914.

Appeal from Superior Court, Suffolk County.

Proceeding by Thomas Septimo against the Boston Rubber Shoe Company and the Massachusetts Employees' Insurance Association under the Workmen's Compensation Act. From the determination of the Industrial Accident Board, reversing the report of the Committee of Arbitration, the insurer appeals. Affirmed.

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

CROSBY, J.

This is a proceeding under the Workmen's Compensation Act (Laws 1911, c. 751 amended by Laws 1912, c. 571). The employé, Septimo, received an injury which arose out of and in the course of his employment, and thereafter, during a part of the period between the date of his injury and the filing of his claim with the Industrial Accident Board, he was employed by his former employer and was paid $9 a week. Before he was injured, his weekly wages were $10.

While he was so employed, after his injuries, the mill where he worked was shut down for 3 5/7 weeks, ‘owing to the slackening up of business.’ During this time he received no wages. The question in controversy is whether he was entitled to compensation for the 3 5/7 weeks when the mill was closed upon a partial or total incapacity for work.

[1] This case is to be decided upon the facts found by the Industrial Accident Board in its review of the report of the committee of arbitration, if there was any evidence to warrant those findings. Diaz's Case, 217 Mass. 36, 104 N. E. 384; Donovan's Case, 217 Mass. 76, 104 N. E. 431; Bentley's Case, 217 Mass. 79, 104 N. E. 432.

[2] The Industrial Accident Board, after hearing, found that the employé ‘was not able to earn anything by reason of his injury during each of the 3 5/7 weeks.’ This is equivalent to a finding that the employé was totally incapacitated for work during that period. As the evidence is not reported, it cannot be found as matter of law that such finding was not warranted.

The insurer contends that because the employé was employed after his injury and paid wages at the rate of $9 a week, a finding of total incapacity for work during the time that the mill was closed was not warranted.

We do not think that this contention can be maintained. While such employment was evidence that the employé was not wholly incapacitated for work, yet it was not conclusive.

The committee of arbitration found that it was probable, considering his injured condition, that he would not have been able to obtain work or to earn anything elsewhere. The record shows that he was seriously crippled and disabled. The photograph, which is annexed to and made part of the report of the board, shows that he has lost the whole of every finger, except the forefinger of his right hand...