Simons, Sr.'s Case
Simons, Sr.'s Case
Opinion of the Court
The employee over a long period of employment in dyeing plants, during which there were three successive workmen’s compensation insurers, inhaled the fumes and dust of irritating chemicals and developed a severe disabling pulmonary bullous emphysema. He ceased work on November 9, 1962, and except for two days in December, 1962, has not worked since. The third insurer had been on the risk on and after August 30, 1962. The issues presented by that insurer’s appeal from the decree in the Superior Court awarding compensation on the reviewing board’s decision are whether there was adequate basis for the board’s finding that there was causal connection between the disability and the employee’s exposure in the period from August 31, 1962, to November 9, 1962, and whether lack of formal notice and late filing of claim prejudiced the insurer.
A physician who attended the employee on and after November 14, 1962 (he was the physician of “the owner” of the then corporate employer and was recommended by him), testified that the chemicals, if they did not initiate the employee’s affliction, “certainly had severe aggravating effect on this man’s disease.” As to whether inhalation of the offending substances from the time of the employee’s hospitalization in 1961 down to November of 1962 “caused the condition to progress,” the physician answered “Progression? ... In that period of time, yes.” Another physician attributed the affliction to the employee’s con-
The insurer’s contention that causation is not shown depends upon the testimony of this physician set out in the margin.
The filing of claim eleven months after November 9, 1962, was of course late and there was no prior formal notice. But the circumstance of exposure was not contested, only its significance. Kulig’s Case, 331 Mass. 524, 526. The board’s finding of lack of prejudice was within reason on the evidence. Mahoney’s Case, 337 Mass. 629, 632. Davidson’s Case, 338 Mass. 228, 232. Ogonowsky’s Case, 338 Mass. 468, 471. Robinson’s Case, 354 Mass. 282, 284-285. Compare Russell’s Case, 334 Mass. 680.
The decree is affirmed. Costs and expenses of appeal shall be determined by the single justice.
So ordered.
Q. “This bullous tjre emphysema, is it rapidly progressive, doctor?” A. “Yes, it is, over a period of years. Talking about rapidity — it is relative.” Q. “So, exposure to irritants for a short time could very well not affect — .” A. “What do you mean by a short time?” Q. “By, say, a year — would exposure of a year have any effect on it?” A. “It could have an aggravating effect, but probably not a causative one by itself.” Q. “Say, an exposure over a nine-month period — would that appreciably affect it?” A. “It would not produce this bullous change — not very likely.” Q. “Exposure over six months — would that appreciably affect it?” A. “That’s giving a lesser period; I said no for nine months.” Q. “And it would be even less for two or three months?” A. “That’s correct.” Q. “We still do not have to look very far for an irritant, as to a preexisting condition, if we look to smoking habits?” A. “As I said before, yes, you do, because of the bullous change.”
Reference
- Full Case Name
- Robert E. Simons, Sr.'s Case
- Status
- Published