Leminen's Case

233 N.E.2d 894, 353 Mass. 772, 1968 Mass. LEXIS 918

• Court: Massachusetts Supreme Judicial Court
• Decided: February 6, 1968
• Status: Published

Opinion

The insurer appeals from a decree awarding total incapacity and dependency compensation, plus certain counsel and medical fees, to the employee which in effect confirmed the decision of the reviewing board. The basis of the appeal lies in the insurer’s assertion that the employee failed to give notice “as soon as practicable” after his injury. The reviewing board had affirmed and adopted the findings and decision of the single member. The single member found that on the morning of the alleged injury the employee felt unwell, so informed his foreman, and shortly thereafter departed for his home. The foreman learned “within two to three days following the injury” that the employee had sustained a heart attack which totally disabled him. The single member further found that the late filing for compensation on September 11,1962, was due to the failure of the employee to realize “that he had a compensation claim,” of which he was informed by a fellow union member months after he suffered the attack. The employee had been immediately treated for his condition and hospitalized. There was available to the insurer all medical information which it might have had had it been promptly notified. The single member found, and the reviewing board confirmed, that the insurer was not prejudiced by the delay in filing the claim. There was no error. The employee’s mistake on his rights did not prejudice the insurer. G. L. c. 152, §§ 41, 42, 44 and 49. The foreman had early knowledge of the illness of the employee and knowledge several days later of his heart attack. His knowledge was that of his employer. Davidson’s Case, 338 Mass. 228. Sherman’s Case, 352 Mass. 769.

Barry W. Plunkett for the employee. Thomas M. Finucane, for the insurer, submitted a brief.

Decree affirmed.