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Attorney(S)

T.N. Foynes, for the insurer, submitted a brief. J.M. Rosenthal, for the claimant.

Judges

CARROLL, J.

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Nicholas Korobchuk's Case — Supreme Judicial Court of Massachusetts (Dec. 28, 1931)

Citation context: Supreme Judicial Court of Massachusetts, Berkshire; argued September 15, 1931; decided December 28, 1931. Opinion by Carroll, J. Panel included Rugg, C.J., Crosby, Carroll, Sanderson, Field, JJ. Certified to the Superior Court under the workmen's compensation act; heard in Superior Court by W. A. Burns, J.; insurer appealed from a final decree awarding compensation. Counsel of record: T. N. Foynes for the insurer; J. M. Rosenthal for the claimant.

Factual and Procedural Background

The employee (Nicholas Korobchuk) sustained injuries on October 15, 1929, while operating a heavy punch press. The injuries involved loss of terminal phalanges and partial loss of other phalanges on several fingers of his left hand. Compensation under the workmen's compensation statute was paid for those specific losses. The employee returned to light work (a light punch press) on December 16, 1929.

The Industrial Accident Board and a single member found that the employee was partially incapacitated, with "a material decrease in gripping and working power." The board awarded partial compensation equal to two thirds of the difference between the employee's average weekly wages before the injury and the wages he was able to earn after the injury.

The case was certified to the Superior Court under the workmen's compensation act; following a final decree in the Superior Court awarding compensation consistent with the board's findings, the insurer appealed to the Supreme Judicial Court of Massachusetts.

Legal Issues Presented

How is "earning capacity" to be measured for the computation of partial incapacity compensation under G. L. c. 152, § 35 — by the amount an employee is capable of earning after injury or by what he actually earns?
Whether a surgeon who operated on the claimant can be regarded as an "impartial physician" within the meaning of G. L. c. 152, § 9, so that the surgeon's report is admissible under that provision.
Procedural question as to preservation of objections in hearings before the Industrial Accident Board: whether a mere objection (without an exception) to the admission of evidence preserves the issue for appellate review.
Constitutionality of St. 1930, c. 208 (as applied in assessing costs against the insurer): the opinion notes the issue but does not determine it.

Arguments of the Parties

Insurer's Arguments

The insurer contended that the report of Dr. Bard, introduced under G. L. c. 152, § 9, was improper because Dr. Bard was not an impartial physician — he had operated on the employee for the injuries. The insurer objected to admission of Dr. Bard's report at the hearing before the single member.
The insurer appealed the Superior Court's final decree awarding compensation; the record reflects disagreement with aspects of the board's approach to measuring post-injury wages/earning capacity and with the award of costs against the insurer under St. 1930, c. 208, although the insurer did not argue the constitutionality of that statute before the Supreme Judicial Court.

Claimant's Arguments

The opinion does not contain a detailed account of the claimant's legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Durney's Case, 222 Mass. 461	That partial compensation under G. L. c. 152, § 35, is to be measured by the amount the employee is capable of earning after his injury (earning capacity), not necessarily by what he actually earns.	Quoted as part of the line of authority establishing the proper measure of partial compensation; used to explain that the board should consider earning capacity rather than actual earnings, and to frame the court's review of the board's method.
Capone's Case, 239 Mass. 331	Support for the earning-capacity principle under G. L. c. 152, § 35.	Cited along with other cases to reinforce the legal principle that business conditions and other non-injury causes affecting actual earnings must be taken into account, and compensation relates to loss caused by the injury.
Johnson's Case, 242 Mass. 489	Further authority on measuring partial compensation by earning capacity rather than actual earnings.	Included in the string of authorities grounding the court's statement of the proper rule for computing partial incapacity compensation.
Driscoll's Case, 243 Mass. 236	Additional precedent supporting the rule that compensation is for earnings lost because of the injury (earning capacity), not for losses due to business depression or lack of demand for labor.	Used with the other cited cases to explain the statutory rule and guide evaluation of the board's factual finding regarding what the employee was "able to earn."
Pigeon's Case, 216 Mass. 51	Principle concerning the need to preserve objections by exceptions in administrative hearings to present them on appeal.	Applied to conclude that the insurer's mere objection (without exception) to the admission of the impartial physician's report was not preserved for appellate review.
Ogden v. Aspinwall, 220 Mass. 100, 103	Authority on the consequences of failing to take exceptions to rulings at administrative hearings and the procedural requirement to save exceptions to preserve appellate review.	Relied upon in applying the general rule that an objection unaccompanied by exception at the hearing does not bring the evidentiary question before the court on appeal.

Court's Reasoning and Analysis

The court first recited the board's factual findings: the employee's specific finger injuries, return to light work, and the board's conclusion of partial incapacity with a material decrease in gripping and working power. The board awarded two thirds of the difference between pre-injury average weekly wages and the wages the employee was able to earn after the injury.

On the legal standard for computing partial compensation under G. L. c. 152, § 35, the court emphasized that earning capacity (what the employee is capable of earning after his injury) — not merely actual post-injury earnings — is the measure. The court relied on prior cases (Durney's Case; Capone's Case; Johnson's Case; Driscoll's Case) to state the principle that business conditions or other non-injury causes that limit actual earnings must be accounted for; compensation is for the loss caused by the injury, not for losses caused by depression in business.

The record showed that the board, in determining post-injury wages, apparently used the employee's actual wages as reflected in the wage schedule. The court acknowledged statements in the single member's report and the board's decision that suggested an incorrect analytical approach (i.e., focusing on actual earnings rather than earning capacity). However, the court found that the board explicitly concluded that the employee's actual wages fairly represented his ability to earn — that is, the board found actual wages were the wages he was "able to earn thereafter." Given that factual finding and because the record did not show that the issue had been called to the board's attention, the court held it could not say the board made an error of law in its conclusion.

Regarding the impartial physician question, the court noted that G. L. c. 152, § 9, permits the report of a duly qualified impartial physician to be received in evidence. The insurer objected to the admission of Dr. Bard's report on the ground that Dr. Bard had operated on the claimant (and thus was not impartial). If the employee's testimony that Dr. Bard had operated on him were believed, Dr. Bard would not qualify as an impartial physician under the statute. Nevertheless, the insurer merely objected at the single-member hearing and did not save an exception. The court applied the general rule (as reflected in Pigeon's Case and Ogden v. Aspinwall) that objections must be followed by exceptions to preserve the issue on appeal, and therefore the insurer's objection was not before the court.

Finally, the board assessed costs of $50 against the insurer under St. 1930, c. 208, to cover the cost to the injured employee of the review, including reasonable counsel fees. The court observed that the constitutionality of that statute was not argued before it and therefore was not decided.

Holding and Implications

Decree affirmed.

Implications and direct effects:

The Superior Court's final decree awarding the partial compensation, as determined by the Industrial Accident Board, was affirmed by the Supreme Judicial Court.
The court upheld the board's factual determination that the employee's actual post-injury wages represented the wages he was able to earn; on the record presented, the board's method was not held to be erroneous.
Procedurally, the opinion reinforces that an objection to evidence before a single member of the Industrial Accident Board, if not followed by an exception, does not preserve the issue for appellate review.
Although the opinion notes the statutory provision (St. 1930, c. 208) under which costs were assessed against the insurer, the court did not rule on that statute's constitutionality because the insurer did not argue the question.
No new constitutional holding or change in precedent was announced; the decision rests on affirming the board's determinations and applying established rules on earning-capacity measurement and preservation of objections by exception.

This summary is based exclusively upon the language and holdings contained in the provided opinion. No facts or legal conclusions beyond those present in the opinion have been added.

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NICHOLAS KOROBCHUK'S CASE.

Workmen's Compensation Act, Amount of compensation; Impartial physician; Procedure: objections, exceptions; Appeal; Costs.

Earning capacity for the purpose of computing compensation for partial incapacity under G.L.c. 152, § 35, is to be measured by the amount the employee is capable of earning after his injury and not by what he actually earns. While, in the record before this court upon an appeal by an insurer from a final decree of the Superior Court awarding to a claimant a certain amount as compensation for partial incapacity, there were statements of both the single member and the Industrial Accident Board indicating that they improperly disregarded the fact that it was not actual earnings but earning capacity after the return to work which was to be considered, nevertheless, since the board's decision contained statements to the effect that "his [the employee's] ability to earn wages" was in fact fairly represented by his actual wages, and that "the sums which he has been able to earn" since he returned to work were shown by what he actually received, and it did not appear that the question as to the proper rule to apply was brought to the attention of the board, it was held, that the record showed that it was found by the board that the employee's actual wages after the injury were the wages he was "able to earn thereafter," and that no error appeared. It seems, that a surgeon who has operated upon a claimant under the workmen's compensation act cannot be an impartial physician within the meaning of G.L.c. 152, § 9. The general rule with reference to exceptions should be followed in hearings before the Industrial Accident Board and, if a party intends to rely on an objection taken, he should save an exception. Per CARROLL, J. A mere objection to the admission of certain evidence at the hearing of a claim under the workmen's compensation act by a single member of the Industrial Accident Board, if not followed by an exception, does not bring the propriety of the admission of the evidence to this court upon an appeal from a final decree of the Superior Court awarding compensation as found by the Industrial Accident Board and the single member. Whether St. 1930, c. 208, is constitutional, was not determined.

CARROLL, J.

The employee was injured October 15, 1929, while at work on a heavy punch press, and was paid compensation under the workmen's compensation statute for the loss of the terminal phalange of the forefinger, the entire terminal phalange and half of the second phalange of the second and ring fingers, and the entire terminal phalange of the little finger of the left hand. He returned to work on a light punch press December 16, 1929. It was found that the employee was partially incapacitated and unable to do the work he did before he was injured because of the condition of his left hand; that there was a "material decrease in gripping and working power." He was awarded partial compensation of two thirds of the difference between his average weekly wages before his injury and the wages he was able to earn after the injury.

There was evidence to warrant the finding of the Industrial Accident Board. The board in determining the weekly wages the employee was able to earn after the injury apparently found that the wages he actually received after the injury, as shown by the wage schedule, were in fact the weekly wages he was able to earn. There was no error in this if his actual wages after the injury were the wages he was able to earn.

Under the statute, G.L.c. 152, § 35, it is not the wages actually earned after the injury that are the basis of deciding the earning capacity. If conditions other than his injury, such as depression in business or other causes, prevented the employee from earning more wages, these facts are to be taken into account, and the partial compensation in all cases is to be measured by the amount the employee was capable of earning and not necessarily by what he actually earned. In other words the compensation is not to be awarded if the employee is idle because there is no demand for labor; he is to be paid for the loss of earnings caused by the injury and not for loss of earnings caused by the business depression. Durney's Case, 222 Mass. 461. Capone's Case, 239 Mass. 331. Johnson's Case, 242 Mass. 489. Driscoll's Case, 243 Mass. 236.

The employee testified that he is now working "four days a week, nine and one half hours a day. The reason that he does not work forty-seven and one half hours now is because there is no work for him, and that is generally so at the plant"; that before the injury he worked sixty hours a week, "but he does not think he could do that now, because the left hand is weak altogether."

There are statements of both the single member and the board in the report indicating that they did not adopt the correct rule and that they disregarded the fact that it was not actual earnings but earning capacity after the return to work which was to be considered. On the other hand, we think the report shows that it was found that his actual wages after the injury were the wages he was "able to earn thereafter." This is shown by the decision of the board to the effect that "his ability to earn wages" was in fact fairly represented by his actual wages, and the statement that "the sums which he has been able to earn" since he returned to work are shown by what he actually received. We cannot say that there was error of law in the conclusion of the board. It may have been that, notwithstanding the employee's own evidence, his actual wages were the wages he was able to earn, not because of the lack of demand for labor, but merely because of his incapacity; that he did not earn more solely because of his injuries. It does not appear that this question was brought to the attention of the board, and on this record we cannot say that the method followed by the board was wrong.

Under G.L.c. 152, § 9, the report of a duly qualified impartial physician appointed by the Industrial Accident Board may be received in evidence. Under this statute the report of Dr. Bard was received in evidence at the hearing before the single member. The insurer contended that Dr. Bard was not an impartial physician, but was partial because he operated on the employee's fingers. We understand from the testimony of the employee that Dr. Bard operated on him for the injuries received on October 15, 1929. If this testimony were believed Dr. Bard was not an impartial physician within the meaning of G.L.c. 152, § 9. But the insurer did not except to the admission of the report of Dr. Bard; it did object, however. We think the general rule with reference to exceptions should be followed in a hearing in industrial accident cases and if a party intends to rely on his objection he should save his exception. For this reason we do not think the insurer's mere objection to the admission of the report of Dr. Bard is before us. Pigeon's Case, 216 Mass. 51. Ogden v. Aspinwall, 220 Mass. 100, 103. Furthermore, it does not appear that this point was brought to the attention of the board when it was hearing the case on review.

The board, acting under St. 1930, c. 208, assessed costs of $50 against the insurer "to cover the cost to the injured employee of this review, including reasonable counsel fees." The constitutionality of this statute has not been considered as the question is not argued by the insurer.

Decree affirmed.

KOROBCHUK'S CASE