3 Mass. App. Ct. 133

May 21, 1974 - March 21, 1975

Suffolk County


Evidence that an employee injured in the course of his employment suffered total deafness in one ear and eighty percent hearing loss in the other and that his hearing ability was so diminished that he had no capacity for the work he was doing at the time of the injury was sufficient to support a finding that the employee had suffered a total loss of hearing for all practical purposes and that he was entitled to an award of compensation for loss of hearing in both ears under the Workmen's Compensation Act. [135-139]

On a motion by an insurer to recommit a claim in a workman's compensation case, it was within the discretion of the Industrial Accident Board and the Superior Court judge to determine whether information contained in a report by a physician who had examined the employee was newly discovered evidence, and there was no abuse of discretion in declining to reopen the proceedings to admit further medical evidence. [139-140]

A report of a single member of the Industrial Accident Board containing specific reference to statements of two medical examiners relied upon by the single member in awarding compensation contained an adequate statement of the findings of subsidiary fact so that recommittal was not required. [140-141]

CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the Workmen's Compensation Act. The case was heard by Hallisey, J. Paul F. X. Powers for the insurer. Anthony D. Pompeo for the employee.

ROSE, J. This case arises under the Massachusetts Workmen's Compensation Act and is before this court on an appeal by the insurer from a Superior Court decree awarding the employee compensation for loss of hearing in both ears, pursuant to G. L. c. 152, Section 36(f), as amended

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through St. 1966, c. 584. See now G. L. c. 152, Section 36(d), as appearing in St. 1972, c. 741, Section 1. [Note 1] The Superior Court decree was in conformity with the decision of the reviewing board, which had affirmed and adopted as its own the findings and decision of the single member. The insurer appeals from the award, arguing that there is insufficient evidence in the record of loss of hearing in both ears to qualify under G. L. c. 152, Section 36(f).

The single member's findings must be sustained unless "wholly lacking in evidential support." Sutherland's Case, 2 Mass. App. Ct. 58 , 59 (1974). If the findings of the Industrial Accident Board "could be reasonably deduced from the evidence and the rational inferences of which it was susceptible, . . . [then] the decision . . . must be sustained if there may be found from the evidence any facts or combination of facts that would support it. . . . The decision of the board is not to be set aside unless a different conclusion is required as matter of law." Chapman's Case, 321 Mass. 705 , 707 (1947). But see Cohen v. Board of Registration in Pharmacy, 350 Mass. 246 , 253 (1961).

The employee, George Vouniseas, was injured when in the course of his employment he was struck on the head by a cement block. The employee has been receiving total incapacity compensation apart from his claim filed for compensation for specific injuries under G. L. c. 152, Section 36, [Note 2] which provided in subsection (f) for compensation "[f]or the loss of hearing of both ears." [Note 3]

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The evidence most favorable to the employee, supporting the single member's finding, was as follows. Doctor Peter H. Dillard, a neurosurgeon, [Note 4] and an impartial examiner to whom the claimant was referred by the Industrial Accident Board, reported: "apparently . . . deaf in the left ear, and cannot hear normal watch ticking even against the right ear. . . . This hearing loss is apparently total on the left, and appreciably diminished on the right . . . his capacity for the work he was doing at the time of injury is probably nil . . . in the long run his capacity for gainful employment will be modified largely by his ability to compensate for his hearing loss." Doctor Bernard Zonderman, an otologist and also an impartial examiner, found: "During the examination, it was noted the patient was obviously reading the interpreter's lips . . .. Audiograms revealed a profound, almost total, deafness in his left ear and about 80 db loss by aid conduction in his better, right ear. No bone conduction could be ascertained in the left ear and the bone conduction in the right ear was poor . . .. It was my impression from his history and examination that this patient has a profound deafness in the left ear and a severe hearing loss in his better, right ear averaging eighty percent loss of hearing."

1. We first consider the insurer's contention that there is no evidence to support the finding of a loss of hearing in both ears. There is no statutory standard by which "loss of hearing" is to be measured. [Note 5] It appears that this is a case

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of first impression in this jurisdiction and thus requires a careful inquiry as to what was intended by the statutory language "loss of hearing."

The Industrial Accident Board has issued guidelines for Section 36 specific injury compensation. In suggesting the amount of compensation to be awarded for the various injuries, the guidelines state the standard for loss of hearing as "total loss of hearing for all practical purposes." [Note 6] Precedent in the case law of this jurisdiction for the adoption of a "loss for all practical purposes" standard in cases dealing with Section 36 specific injury claims may be found in Morley's Case, 328 Mass. 148 , 150 (1951). In that case, the court found that an injured hand was permanently incapable of use where the employee had lost the use of the hand "for all practical purposes." In addition, both parties appear willing to accept this guideline, and the single member applied it in this case.

Total loss of hearing for all practical purposes does not mean that the employee must be unable to hear any sounds under any conditions. See Locke, Workmen's Compensation, Section 348, n. 91 (1968). The loss may be classified as total for purposes of this guideline although some degree of hearing is retained. Similar treatment has been given to those portions of Section 36 which have employed the language "permanently incapable of use" or similar language as the standard for compensating injuries to a member not involving severance. In Meley's Case, 219 Mass. 136 , 139 (1914), it was held that to satisfy that standard "[t]he incapacity of use need not be tantamount to an actual severance of the hand; it is enough that the normal use of the hand has been taken entirely away." Accord, Floccher's Case, 221 Mass. 54 , 55 (1915). Thus, a loss need not be total or complete in a literal sense in order to be compensable, and the Industrial Accident Board's guideline "total loss of hearing

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for all practical purposes" appears to be consistent with the statutory scheme of Section 36.

The statutory language found in the workmen's compensation law of Georgia, "complete loss of hearing," Ga. Code Section 114-406 (r), would appear to invoke a stricter standard than the Massachusetts language, "loss of hearing." Nevertheless, the Georgia provision has been construed to mean "for all ordinary and practical purposes unable to hear." Shipman v. Employers Mutual Liability Ins. Co. 105 Ga. App. 487, 493 (1962). In the Shipman case, also a case of first impression, the evidence disclosed a fifty-one percent loss of hearing in the right ear, measured by the audiometer test, and medical testimony indicated that for all practical purposes hearing had been lost in that ear. The Georgia court reasoned that since the act was related to industry, the standard of loss of hearing should be related to the industrial purposes and uses of the employee's hearing. Id. at 493. In a later case, the same court held that "even if one has some hearing ability in an ear but the ear has none of the hearing ability required of his work, he is deemed to have a `complete loss of hearing' in the ear for the purposes of workmen's compensation." Aetna Ins. Co. v. Woody, 118 Ga. App. 819, 820 (1968). [Note 7] In the Shipman case, the claimant could not hear ordinary and normal

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sounds with his right ear and upon this evidence and evidence of a fifty-one percent loss in the right ear, a "complete loss of hearing" in that ear was found. In the case before us, Dr. Zonderman's finding of an eighty percent binaural loss would appear to surpass the loss of hearing shown in the Shipman case. See also Aetna Ins. Co. v. Woody, supra (also sustaining a ruling of complete loss of hearing in one ear upon a finding of a fifty-one percent loss of hearing in that ear). Additionally, Dr. Dillard found that the employee's hearing ability was diminished to the point where his capacity for the work he was doing at the time of injury was probably nil.

The single member, in finding "for all practical purposes . . . a total loss of hearing in both ears," took into consideration the type of work the employee did. He was justified in doing so. This is consistent with the purposes underlying Section 36 specific injury compensation, [Note 8] and Massachusetts does not neglect consideration of industrial worth in determining

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whether there has been a loss of a bodily function. For instance, reduction of vision to twenty-seventieths of normal, which is fully compensable under Section 36, is generally known as the standard for industrial blindness. See Pizzano's Case, 331 Mass. 380 , 383 (1954). We conclude that the evidence presented by the two impartial medical examiners, upon which the single member relied in his findings, supports the award of compensation made under G. L. c. 152, Section 36(f), for loss of hearing in both ears. We accept the Industrial Accident Board's guideline of "total loss for all practical purposes" as the applicable standard for evaluating loss of hearing. Evidence of an eighty percent binaural loss of hearing, in particular, provides a basis for holding that the above standard was met.

2. The insurer presented a motion to the reviewing board, seeking to have the case recommitted in order to amplify the record by conducting further tests upon the hearing of the employee and to receive an audiology report of one Dr. Chaves, who had conducted tests on July 20, 1972. In addition, the insurer seeks recommittal so that the single member can make specific findings of subsidiary facts bearing on the question of loss of hearing. By virtue of G. L. c. 152, Section 10, the reviewing board has authority to recommit a proceeding to a single member for the purpose of obtaining additional findings of fact. However, that section also provides that "[n]o party shall as of right be entitled to a second hearing upon questions of fact," and that provision has been construed to mean that the introduction of new evidence is ordinarily a matter within the discretion of the reviewing board. "Commonly there should not be a rehearing." Lopes's Case, 277 Mass. 581 , 585 (1931), citing Doherty's Case, 222 Mass. 98 , 101 (1915); Devine's Case, 236 Mass. 588 , 595 (1921).

The Superior Court has the power to order a rehearing "on the ground of newly discovered evidence, when in accordance with sound practice and settled principles concerning a new trial at common law that course ought to be pursued." Johnson's Case, 242 Mass. 489 , 495-496 (1922). Lopes's Case, supra, at 586. Sabbagh's Case, 346 Mass. 504 ,

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507 (1963). "New trials will not be granted on the ground of newly discovered evidence except upon proof of `important evidence of such a nature as to be likely to have a material effect upon the result, which could not reasonably have been discovered before the trial by the exercise of proper diligence and respecting the production of which on motion there has been an entire want of laches.'" Lopes's Case, supra, at 586-587, quoting Berggren v. Mutual Life Ins. Co. of New York, 231 Mass. 173 , 177 (1918).

The Industrial Accident Board denied the insurer's motion to recommit, and the Superior Court issued a final decree in conformity with the board's decision. "When the Industrial Accident Board and a judge of the Superior Court have decided that there ought not to be a rehearing, the only question before . . . [us] ordinarily is whether the record shows an abuse of discretion." Lopes's Case, supra, at 586, citing Devine's Case, supra, at 595. It was properly within the discretion of the board and the Superior Court judge whether the information contained in the report of Dr. Chaves and his suggestion that additional tests be conducted was newly discovered evidence, and there was no abuse of discretion in declining to reopen the proceedings to admit further medical evidence.

An additional ground for recommittal urged by the insurer is that the single member made insufficient subsidiary findings. Broad general findings which do not disclose the view taken of the facts will be acceptable only where no contrary inference can be drawn from the evidence. The reviewing board or single member must set out subsidiary findings in a form sufficiently explicit so that the correctness of the general findings may be reviewed. See Rozek's Case, 294 Mass. 205 , 206-207 (1936); Demetrius's Case, 304 Mass. 285 , 286 (1939). We conclude that the single member's report contains a sufficient statement of what evidence he relied upon in awarding compensation to the employee under G. L. c. 152, Section 36(f). He refers specifically to certain statements upon which he relied, i.e. those statements, discussed earlier in this opinion, which were part of the medical evidence presented by the two impartial

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medical examiners. Thus, in the circumstances of this case, the single member's decision, adopted by the reviewing board, contained a sufficient statement of the findings of subsidiary fact upon which he relied in reaching his conclusions to allow us effectively to review the question whether, in reaching those conclusions, he correctly applied the proper legal standards. Contrast Herson's Case, 341 Mass. 402 , 407 (1960); Moore's Case, 330 Mass. 1 , 6 (1953).

Decree affirmed.


[Note 1] The 1972 amendment is not applicable, since the injury occurred on November 12, 1970. St. 1972, c. 741, Section 2.

[Note 2] The employee was also awarded compensation for disfigurement to his scalp pursuant to G. L. c. 152, Section 36(h), as amended through St. 1966, c. 584. See now G. L. c. 152, Section 36(k). That award is not contested on this appeal.

[Note 3] In general, the purpose of the Massachusetts Workmen's Compensation Act is to compensate an injured employee for the impairment of his earning capacity. However, Section 36 recovery for specified injuries is an exception, providing for payment in addition to all other compensation. Kaczmarczyk's Case, 328 Mass. 9 , 12 (1951). 1956 Ann. Surv. of Mass. Law, Section 19.4.

[Note 4] The reviewing board denied a motion by the insurer to exclude the use of the report of Dr. Dillard as it pertained to an evaluation of loss of hearing on the ground that "a proper evaluation of loss of hearing lies in the field of otology rather than neuro-surgery." As the insurer has not argued this point in his brief, within the meaning of Rule 1:13 of the Appeals Court, 1 Mass. App. Ct. 889 (1972), we do not consider it.

[Note 5] A House of Representatives minority report, commenting on proposals to add the loss of hearing provisions to the list of specific injuries in section 36, recognized that there is "no provision as to just how the loss of hearing is to be measured." 1947 House Doc. No. 1803, at 10.

[Note 6] As to the weight to be accorded such an administrative guideline see Cleary v. Cardullo's, Inc. 347 Mass. 337 , 343-345 (1964). See generally Skidmore v. Swift & Co. 323 U.S. 134, 139-140 (1944); Davis, Administrative Law Treatise, Section 5.03 (1958). Cf. School Comm. of Springfield v. Board of Educ. 362 Mass. 417 , 441-442 (1972).

[Note 7] Rhode Island, as did Georgia, rejected a technical definition of "complete loss of hearing" and construed the phrase in a practical sense. Pilkanis v. Leesona Corp. 101 R.I. 494 (1966). Contrast Hartlieb v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. Rep. 118 (1974). The Pilkanis case construed language of the Rhode Island workmen's compensation law, G. L. 1956, Section 28-33-19, which also provides compensation for "complete loss of hearing." The Rhode Island Supreme Court formulated a stricter standard than that of Georgia, stating that an injured worker would not be entitled to specific compensation even though the loss was extensive enough to make his hearing worthless industrially, if he still retained "some degree of . . . hearing which is of practical and useful benefit to him in his daily pursuits." Pilkanis, supra, at 499. Nevertheless, in Lamont v. Aetna Bridge Co. 107 R.I. 686 (1970), the court implied that losses of only fifty percent in one ear and forty percent in the other would be sufficient, under the Pilkanis standard, to warrant a finding of a complete loss of hearing. See also Lozowski v. Nicholson File Co. 92 R.I. 270 (1961).

[Note 8] See 1956 Ann. Surv. of Mass. Law, Section 19.4.

See also 1947 House Doc. No. 1803, at 2-3 indicating that specific compensation was intended to compensate "for loss of possible future increases in earnings that . . . [an individual] might reasonably be expected to achieve were it not for his handicap and deformity," and for the deprivation of the ability for self-help, i.e. the ability to do chores and errands for which one does not receive income but which are of value to any individual and his family.

Cf. 1949 House Doc. No. 918, and 1949 Senate Doc. No. 580 (bills introduced prior to the 1949 amendment of Section 36 by St. 1949, c. 519) containing a proposed amended version of the section, entitled "An Act to Encourage Rehabilitation by Providing Extended Payments for Serious Specific Losses" (emphasis supplied).

Some commentators consider the purpose of specific compensation payments to have developed beyond that originally intended. For a discussion of the view that such payments are a means, although often arbitrary, of providing payments to complement the inadequate recovery for wage earning loss, see 1956 Ann. Surv. of Mass. Law, Section 19.4. See also Locke, Workmen's Compensation, Section 345, p. 413 (1968) ("Although one consideration in providing specific compensation undoubtedly is the presumed effect of such permanent handicaps on the employee's ability to compete with others in the labor market, the main purpose is to provide more adequate compensation for the employee's real loss, in a system which has taken away the employee's common law right of action against his employer for personal injuries").