McEwen's Case

• Decision Date: 21 March 1974
• Citation: 2 Mass.App.Ct. 63,308 N.E.2d 778
• Parties: Ralph McEWEN'S CASE.
• Court: Appeals Court of Massachusetts

Page 778

308 N.E.2d 778

2 Mass.App.Ct. 63

Ralph McEWEN'S CASE.

Appeals Court of Massachusetts, Suffolk.

Argued Dec. 11, 1973.

Decided March 21, 1974.

Timothy H. Donohue, Boston, for insurer.

Joseph K. Kelley, Boston, for employee.

Before HALE, C. J., and ROSE, KEVILLE, GRANT and ARMSTRONG, JJ.

ROSE, Justice.

This case arises under the Massachusetts Workmen's Compensation Act and is before this court on an appeal by the insurer from a Superior Court decree which awarded the employee total and permanent incapacity and dependency compensation dating from April 17, 1970. The Superior Court decree was in conformity with the decision of the reviewing board, which had affirmed and adopted as its own the findings and decision of the single member. We must therefore look to the single member's decision to determine whether the action of the board was correct. Haley's Case, 356 Mass. 678, 679-680, 255 N.E.2d 322 (1970). Russo's Case, Mass.App.Ct. (1973), 294 N.E.2d 464. ^a

The employee's injury has been the subject of several proceedings before the board. As those proceedings are relevant to a consideration of the issues in this case, we proceed to summarize them. On March 24, 1961, while working as a mechanic, the employee injured his right hand. Although the employee recovered from the physical effects of his accident, he remained unable to work because of feelings of 'lightheadedness, dizziness and weakness of his legs.' His condition was diagnosed in 1962 as a '(p)sychonerurosis-anxiety reaction. stress: severe; fear of reinjury at work.' The employee received total incapacity and dependency compensation from 1961 until 1965. In September, 1965, a single member of the board found the employee capable of performing work and authorized the insurer to discontinue compensation. This decision was modified by the full board, which found the employee partially incapacitated as of that date and awarded him compensation. In September, 1968, the statutory limit on total and partial incapacity compensation was reached, ¹ and the payments to the employee were discontinued.

At some date subsequent to April 1, 1966, the employee initiated a further proceeding before the board in which he claimed total incapacity compensation dating from April 1, 1966, and permanent and total incapacity compensation from September, 1968, when his partial incapacity payments had been discontinued. ² The single member, however, ruled that the employee had failed to sustain his burden of proof and dismissed the claim. This decision was affirmed and adopted by the board. Both the single member and the board explicitly reserved the employee's rights subsequent to the date of the final hearing in the proceedings (April 17, 1970).

Approximately two weeks after the board rendered its decision denying the employee's claims for the 1966-1970 period, the employee initiated a new proceeding, on this occasion requesting total and permanent incapacity compensation dating from April 17, 1970. His claim was allowed by the single member on May 30 1972, in a decision which was subsequently adopted and affirmed by the board.

It is the contention of the insurer that the single member's 1972 finding of total and permanent incapacity was erroneous as a matter of law (Hachadourian's Case, 340 Mass. 81, 85, 162 N.E.2d 663 (1959); Sutherland's Case, Mass.App.Ct. (1974), 308 N.E.2d 775), ³ as there was no evidence to indicate that the employee's condition had changed since 1970, when the board found him not permanently and totally incapacitated. The insurer relies principally upon Foley's Case, 358 Mass. 230, 263 N.E.2d 471 (1970), in which a board finding of total and permanent incapacity was reversed. The court made comments as follows (at page 232, 263 N.E.2d at page 472): 'Our review of the transcript of the testimony at the 1964 hearing leads us to conclude that it does not support the single member's finding that the employee is 'totally disabled within the intent and meaning of § 34A of the Act.' Since the employee had been found in 1960 to be only partially incapacitated the burden in the 1964 proceedings was upon him to prove he was now totally incapacitated as a result of his accident. Davis's Case, 304 Mass. 530, 534, 24 N.E.2d 541 (1939). Hummer's Case, 317 Mass. 617, 622, 59 N.E.2d 295 (1945). We find no evidence to indicate any change in the employee's condition from 1960 to 1964 not due to advancing age.'

The only evidence of a change in this employee's condition between 1970 and 1972 was his testimony and the testimony of one Dr. Rizzo, a physician called by him. The employee testified that his 'condition' subsequent to April, 1970, was '(n)ot the same. Maybe just slightly worse at times,' but said that his 'symptoms' were the same in 1972 as they had been four years earlier. These comments were at best speculative and perhaps contradictory; hence they must be disregarded. Perangelo's Case, 277 Mass. 59, 65, 177 N.E. (1931). Johnson's Case, 278 Mass. 365, 368, 179 N.E. 923 (1932). Sevigny's Case, 337 Mass. 747, 749-750, 151 N.E.2d 258 (1958).

Dr. Rizzo's testimony on the issue of change in condition was equally insubstantial. Asked whether the employee had given him any indication that his condition had worsened in the last two or three years the witness answered, 'A hint of it . . . He expresses discouragement, low morale and feelings of not being much good.' This testimony must also be disregarded as speculative, especially in light of other testimony by the same witness that the employee's 'feelings are similar to what they were following the accident and only made worse because it is now eleven years later.' Dr. Rizzo was also asked whether the employee's medical history indicated of change of condition since his accident in 1961. He replied, 'It got progressively...