Avery's Case
Avery's Case
Opinion of the Court
We approach this workers’ compensation case mindful of the limited role of judicial review. “It is the exclusive function of the [reviewing] board to consider and weigh the evidence . . .” Chapman’s Case, 321 Mass. 705,
Avery’s original back injury occurred in 1968 as the result of an industrial accident. The injury was sufficiently grave as to result in the performance in 1969 of a lumbar laminectomy and a fusion. There followed a series of sporadic employments, which ended because of back pain and weakness. In December, 1972, Avery underwent a second round of surgery. Again there was a course of sporadic employment, much of it as a truck driver, but Avery could not, because of pain and weakness, drive for more than short distances. He ceased to be able to press a clutch pedal. An attempt at carpentry failed because Avery could not work in any position which put strain on his back. During the course of carpentry training he fell from a scaffold, was hurt, and required hospitalization. By neither education nor aptitude could he do a clerical or other desk job.
The single member of the Industrial Accident Board who conducted the hearing from which this appeal flowed, and whose decision was adopted by the reviewing board (see Haley’s Case, 356 Mass. 678, 679-680 [1970]), found Avery totally disabled from November 14,1971, to “sometime around March 1, 1973.” He also found that “the employee’s total disability was causally related to the injury he sustained September 25, 1968.” Indeed the only medical evidence received, that of Dr. Seymour Zimbler, who treated Avery from 1968 to 1980, traced Avery’s sequential mishaps and injuries to the original 1968 accident. See Dillon’s Case, 335 Mass. 285, 289 (1957); Locke, Workmen’s Compensation § 178, at 197 (2d ed. 1981).
At the core of Avery’s appeal is the single member’s determination, for purposes of calculating benefits, that Avery’s disability ended March 1, 1973. Entitlement to dependency benefits during periods of partial disability under G. L. c. 152, § 35A, is a peripheral issue. As noted, the reviewing board adopted the decision of the single member. Judicial review in the Superior Court culminated in a judgment dismissing the claim. See G. L. c. 152, § 11; Webb’s Case, 318 Mass. 357, 358 (1945); Locke, Workmen’s Compensation § 588 (2d ed. 1981).
There is a notable difficulty with the single member’s determination that Avery’s total disability ended on March 1, 1973. The evidence is uncontroverted that on that date Avery was in the midst of a hospitalization for back injury and that, when he left the hospital on March 27, he did so in a
In light of what we have decided, it will be necessary for the board to recompute the additional compensation for dependents during periods of total and partial incapacity. See G. L. c. 152, § 35A. The findings contain no indication how the determination of dependency under § 35A was made. See Swasey’s Case, 8 Mass. App. Ct. 489, 497 (1979). Hospital admission records and tax records indicate Avery was unmarried. There is a reference by Avery in the record to a wife, but the marriage seems to have occurred after the date of Avery’s 1968 injury. SeeG. L. c. 152, § 35A(a) and(c).
The insurer concedes Avery is entitled to interest on the amount found payable by the board in accordance with G. L. c. 152, § 50.
The judgment is reversed. A new judgment is to enter remanding the case to the board for further proceedings consistent with this opinion, including, if deemed appropriate, the taking of additional evidence on any of the issues raised by the claim.
So ordered.
Avery had been admitted to Oakwood Hospital in Dearborn, Michigan, as an emergency patient, on February 17, 1973. He was transferred to New England Medical Center on March 1, 1973, from which he was discharged March 27, 1973. A subsequent hospitalization occurred from January 14,1976,toJanuary21,1976.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.