Workmen's Compensation Act, Appeal, Amount of compensation. Where a committee of arbitration, appointed in a proceeding under the workmen's compensation act in accordance with St. 1911, c. 751, Part III, §§ 5, 7, St. 1912, c. 571, § 12, found that a period of total disability of the injured employee had ceased on a certain day, and then found that the employee agreed to a settlement on a basis of partial disability for a certain period following that date, the employee is not precluded, at a hearing by the Industrial Accident Board on a review of the findings of the committee, from claiming compensation on the basis that "the incapacity for work resulting from the injury" continued to be "total," under § 9 of Part II of the act.
On an appeal from a decree of the Superior Court confirming a decision of the Industrial Accident Board, questions as to the propriety of the admission by the board of certain evidence will not be considered unless the record shows that the appellant objected at the hearing before the board to the admission of the evidence.
Whether, at a hearing before the Industrial Accident Board under St. 1911, c. 751, Part III, § 10, St. 1912, c. 571, § 13, it is proper for the chairman of the board to read and for the board to consider a report in writing, made by a physician who had been appointed by the board to examine the employee under § 8 of Part III of the act, the physician not being present nor sworn as a witness, was not decided on this appeal by the insurer from a decree of the Superior Court confirming a decision of the board, the insurer not having made any objection to the evidence at the hearing before the board.
Where at a hearing before the Industrial Accident Board it appears that an employee who had received injuries through a fall was, when injured, sixty-eight years of age, blind in one eye, partially deaf and lame, that, because of his injury, he was totally incapacitated for all work except that which would allow him to remain seated, and that he had endeavored to obtain work and had been unable to find any which the incapacity due to the injury would not prevent him from performing, a decision awarding the employee compensation under § 9 of Part II of the act on the ground that he was suffering from an "incapacity for work resulting from the injury" which was "total," is warranted although, when injured, the employee was a "man of failing physical powers" who "within a few years" probably would "have been incapacitated for work as a result of physical weakness independent of his injury."
CROSBY, J.
It is admitted that the employee Duprey was injured during the course of his employment and was totally incapacitated for all work from the date of his injuries on October 12, 1912, until June 12, 1913, and that during this period he was paid by the insurer a weekly compensation, in accordance with the terms of the workmen's compensation act (St. 1911, c. 751, Part II, § 9), at the rate of $7.50, which was a sum equal to one half his average weekly wages.
The committee of arbitration heard the parties and found that the total disability of Duprey ended on June 12, 1913, and that thereafter he was partially disabled for work. Having made these findings, the committee states that "It was agreed by Duprey . . . that two years' partial disability, based on the estimated earning capacity of one half of the average weekly wage earned by Duprey at the time of the accident, would be just," and made an award for partial disability therefor.
Upon review of the report of the committee of arbitration by the Industrial Accident Board, the latter, after two hearings before it and a report made by Dr. Washburn, "finds upon the above report and the evidence introduced at the hearing before the Industrial Accident Board that, as a result of the injury, the employee is totally incapacitated for all work except that which will allow him to be seated while engaged in its performance, and that the employee has endeavored to obtain and has been unable to find any work which the incapacity due to the injury will not prevent him from performing." The board therefore finds that there was due the employee a weekly compensation of $7.50, based upon a total incapacity for work, from June 12, 1913.
1. The employee is not precluded by reason of the finding of the committee of arbitration that he agreed to a settlement on a basis of a partial disability, which would cease at the end of one hundred and four weeks from June 12, 1913, because that agreement was made after the committee had found that total disability should cease on June 12, 1913, to which finding, however, the employee did not assent, and did not waive his right to appeal from such finding.
2. The insurer did not put itself in a position to object to the consideration of the report of Dr. Washburn by the Industrial Accident Board. In order that questions as to the admissibility of evidence may be considered by this court on appeal, objection must be made before that board. Pigeon's Case, 216 Mass. 51.
3. We are of opinion that the finding of total disability was warranted if we assume that all the evidence is reported, although this does not clearly appear.
The finding by the board that the employee is a man of failing physical powers and that probably he will be incapacitated for work in a few years, as a result of such physical weakness, independently of his injury, does not bar him from compensation under the act if his incapacity to work is the result of his injuries. Lee v. William Baird Co., Limited, 1 B.W.C.C. 34.
The finding by the board that Duprey "is totally incapacitated for all work except that which will allow him to be seated while engaged in its performance" cannot be construed as a finding that because he is physically able to perform certain labor therefore he is not totally incapacitated for work. The further finding of the board that Duprey "has endeavored to obtain and has been unable to find any work which the incapacity due to the injury will not prevent him from performing" warranted a finding that he was totally incapacitated for work although he had a limited physical capacity to work and earn money.
This precise question was settled by Sullivan's Case, 218 Mass. 141, recently decided by this court, which adopts the rule laid down by the English courts in construing the English workmen's compensation act under a statute containing a provision similar to that in our statute.
The provision of our statute is that weekly compensation shall be paid while "the incapacity for work resulting from the injury is total." St. 1911, c. 751, Part II, § 9.
This court, in commenting upon these words, said in Sullivan's Case, 218 Mass. 141, 142: "The same words were used in an earlier English statute; and it was held by the Court of Appeal in Clark v. Gas Light Coke Co. 21 T.L.R. 184, that the object of the act was to give compensation for an inability to earn wages, and that, if an injured employee after repeated efforts could not get an opportunity to earn wages, a finding that his earning power was gone and therefore that he was under an `incapacity for work' was warranted, although he had a physical capacity to work and earn money." In Ball v. William Hunt Sons, Limited, 5 B.W.C.C. 459, 463, it was said by Lord Macnaghten: "Now `incapacity for work,' as the phrase is used in the schedule, seems to me to be a compendious expression meaning no more than inability to earn wages, or full wages as the case may be, at the work in which the injured workman was employed at the time of the accident." McDonald v. Wilson's Clyde Coal Co., Limited, 5 B.W.C.C. 478. Gillen's Case, 215 Mass. 96.
The question whether the board should have found that there is a total disability for the whole period allowed by the act, is not raised by the record and need not be considered.
It follows that the finding of the Industrial Accident Board that the employee was totally incapacitated for work was warranted.
Decree affirmed.