Home STEFAN LEFKOWITZ'S CASE.

1 Mass. App. Ct. 802

January 18, 1973

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, Section 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.

Home GAFFNY PLUMBING AND HEATING CORP. vs. C. A. BATSON CO.

1 Mass. App. Ct. 802

January 18, 1973

The defendant, the general contractor for the construction of an addition to a school building in Marshfield, has appealed from a final decree of the Superior Court which declares the defendant liable to the plaintiff, the plumbing subcontractor on the job, for the value of the

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labor and materials involved in supplying and placing the necessary stone in two subsurface leaching fields in a sewage disposal system. There is no ambiguity or inconsistency in the use of the words "stone" and "backfill" as they are employed in the pertinent portions of the specifications and in the drawing referred to therein. It is clear that the two types of stone referred to in paragraphs B, C and D of Section 2C.09 and depicted on drawing SD-13 are included in the "all piping and material" which the plaintiff subcontractor was obliged to supply under paragraph B of Section 2C.02. The final decree is reversed, and a new final decree is to be entered which declares that the plaintiff alone is responsible for the cost of supplying and placing the stone in the two leaching fields. The defendant is to have costs of this appeal.

So ordered.