Lefkowitz's Case

Massachusetts Appeals Court

Lefkowitz's Case

294 N.E.2d 494, 1 Mass. App. Ct. 802, 1973 Mass. App. LEXIS 528

DecidedJanuary 18, 1973

StatusPublished

This text of 294 N.E.2d 494 (Lefkowitz's Case) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lefkowitz's Case, 294 N.E.2d 494, 1 Mass. App. Ct. 802, 1973 Mass. App. LEXIS 528 (Mass. Ct. App. 1973).

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Opinion

The insurer appeals from a final decree of the Superior Court awarding the employee compensation for permanent and total incapacity under G. L. c. 152, § 34A. On January 13, 1966, in the course of his employment with the Colonial Provision Company, the employee was injured by a 2100 pound tank which crushed his thumb, most of which was subsequently amputated. Medical testimony was received to the effect that the employee suffers chronic pain not only in the thumb and hand, but also in the arm and shoulder; that he suffers vasospastic symptoms; that he regularly soaks his hand in warm water three times a day to quiet the pain; and that his chronic pain and preoccupation with that pain prevent him from performing remunerative work of a' substantial character. There was evidence to the effect that the employee is a man of limited education, not having formal education beyond fifth grade in Poland, and that in his lifetime he has performed no work other than manual labor. Based on this evidence the single member found permanent and total disability, and the reviewing board adopted the findings and decision of the single member. “The question of total and permanent disability is one of fact and the finding of the reviewing board must stand unless there is no evidence to support it.” LaFlam’s Case, 355 Mass. 409,410. “The decree is based on the decision of the reviewing board which must be upheld if warranted by the evidence and not tainted by error of law.” Chin’s Case, 357 Mass. 772. Although on the whole evidence the board might well have declined to accept the view that the employee is totally disabled, we cannot say that its finding is without basis in the evidence. Costs of appeal are to be determined by a single justice.

Decree affirmed.

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The insurer appeals from a final decree of the Superior Court awarding the employee compensation for permanent and total incapacity under G. L. c. 152, § 34A. On January 13, 1966, in the course of his employment with the Colonial Provision Company, the employee was injured by a 2100 pound tank which crushed his thumb, most of which was subsequently amputated. Medical testimony was received to the effect that the employee suffers chronic pain not only in the thumb and hand, but also in the arm and shoulder; that he suffers vasospastic symptoms; that he regularly soaks his hand in warm water three times a day to quiet the pain; and that his chronic pain and preoccupation with that pain prevent him from performing remunerative work of a' substantial character. There was evidence to the effect that the employee is a man of limited education, not having formal education beyond fifth grade in Poland, and that in his lifetime he has performed no work other than manual labor. Based on this evidence the single member found permanent and total disability, and the reviewing board adopted the findings and decision of the single member. “The question of total and permanent disability is one of fact and the finding of the reviewing board must stand unless there is no evidence to support it.” LaFlam’s Case, 355 Mass. 409,410. “The decree is based on the decision of the reviewing board which must be upheld if warranted by the evidence and not tainted by error of law.” Chin’s Case, 357 Mass. 772. Although on the whole evidence the board might well have declined to accept the view that the employee is totally disabled, we cannot say that its finding is without basis in the evidence. Costs of appeal are to be determined by a single justice.

Decree affirmed.

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Bluebook (online)

294 N.E.2d 494, 1 Mass. App. Ct. 802, 1973 Mass. App. LEXIS 528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lefkowitzs-case-massappct-1973.

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