Massachusetts Bonding & Insurance v. Industrial Accident Commission

WARD, J.

This is a petition by the Massachusetts Bonding & Insurance Company for a writ to review and annul an award of the Industrial Accident Commission of this state in favor of Orville 0. Saffer.

The facts may be stated as follows: Orville 0. Saffer, employed by A. R. Reid as foreman in his cement business, worked the entire day of January 10, 1929, handling and moving barrels weighing four or five hundred pounds. He felt no inconvenience at the time, but that evening he noticed a pain in the back of his neck and upper spine between his shoulder blades. The next day the condition had not improved and included a very stiff right shoulder. He complained to his employer but continued at his usual work. In February a physician and surgeon diagnosed the ailment as arthritis. On or about the 21st of March he had a particularly heavy day which necessitated considerable climbing and the lifting of heavy spray cans and material, after which

[98]

he suffered pain so that two days later he was obliged to cease work. The larger number of medical experts who examined or treated Saffer declared that the condition was arthritic or neuritic and that the injury was nonindustrial. One expert testified he was suffering from inflammation of the muscles, resembling rheumatism, caused by strain, the direct result of the January occurrence; that the second unusual exertion involved in the March incident further aggravated the preexisting condition, and that the injuries were industrial in nature. The commission adopted the latter view.

It is not within the province of an appellate court to weigh the evidence, hence we may not interfere with the finding that the employee “sustained injury occurring in the course of and arising out of his employment when he strained his back” in January.

Different companies acted as insurance carriers for the employer in this case at the time of the January incident and that of the March incident. The pertinent question is whether under the evidence herein the commission could properly find that the proximate cause of the injury was the January incident and make an award against the compensation carrier for the employer at the time of the first injury without reference to or apportionment with the insurance carrier at the time of the second occurrence. The answer is that it is incumbent upon the commission to determine as a fact the proximate cause; that is, whether a second injury is an independent occurrence, or the proximate and natural result of the first injury.