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6 Mass. App. Ct. 859

March 29, 1978

We conclude that it was error to enter judgment dismissing the employee's claim under the Workmen's Compensation Law (G. L. c. 152) for periods of total incapacity arising out of the inhalation of fumes of ethylene glycol in antifreeze which vaporized as a result of a leak in the engine block of the company automobile which the employee drove in the course of his employment servicing the employer's customers -- repairing street leaks and appliances and installing meters. The single member found (his decision was adopted and confirmed by the reviewing board) that such exposure and the resulting injury occurred between September, 1962, and April, 1963, when, as appears from the employee's testimony, the automobile was taken from him and repaired. Compare Steuterman's Case, 323 Mass. 454 , 457 (1948) (upholding a decree based on findings that the personal injury to the employee from exposure to fumes beginning the latter part of 1943 was complete in the early part of 1944, though it resulted in total incapacity beginning January 4, 1946). See Trombetta's Case, 1 Mass. App. Ct. 102 , 105 (1973). The single member further found that the exposure "aggravated this employee's sensitive underlying respiratory condition at various times while in the course of his employment causing sore throat, running nose, nausea, coughing spells and colds . . . ." This finding has an ample basis in Dr. Kane's opinion based on the history he received from the employee (which was substantially the same as the testimony of the employee). Dr. Kane's testimony on redirect examination, summarizing in effect his testimony on direct examination, includes the following: "Well, it is my opinion that based mainly on his occupational history and on a subsequent examination, that he had a sensitized mucous membrane of his respiratory tract and based on his occupational history, I felt that he had become sensitized to this agent, ethylene glycol, and that like sensitivities to all chemicals or irritants, once the sensitivity is set up, they seem to be sensitive to a good many other things which may produce the symptoms in the concentration that is a great deal lower than they could produce in a completely normal person." See Josi's Case, 324 Mass. 415 , 418 (1949); Reilly's Case, 1 Mass. App. Ct. 825 , 826 (1973) (in which we rejected the contentions which are here made). In view of the employee's rather vague testimony indicating only that his absences for which compensation was claimed were in general caused by the September, 1962, to April, 1963, exposure to the ethylene glycol fumes, it was not irrational for the single member to look to the company records and attribute to such exposure (during which the injury occurred) those absences which notations on the records showed were generally due to symptoms connected with the injury. See Ogonowsky's Case, 338 Mass. 468 , 472 (1959); McEwen's Case, 369 Mass. 851 , 853 (1976) (explaining the standard for review).

The insurer's contention that the employee's claim is barred by the first sentence of G. L. c. 152, Section 29 (which, as in effect prior to its amendment by St. 1966, c. 578, provided: "No compensation shall be

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paid for any injury which does not incapacitate the employee from earning full wages for a period of at least seven days"), is not included in the statement of issues in the single member's report, and there is no indication in the record that the argument was made either before the single member or the reviewing board. We therefore need not consider the contention. Compare Goff's Case, 234 Mass. 166 , 120-121 (1919); Gillard's Case, 244 Mass. 47 , 55-56 (1923); Blanchard's Case, 335 Mass. 175 , 178 (1956). See Gustafson's Case, 303 Mass. 397 , 401 (1939). In any event, the single member found sixteen days continuous incapacity from November 2, 1963, to November 17, 1963; the employee is thus entitled regardless of the insurer's contention to "compensation . . . from the date of injury" (G. L. c. 152, Section 29), which was no later than April, 1963. The board thus properly awarded compensation for June 12, 1963, and thereafter for periods of total incapacity. See Crowley's Case, 287 Mass. 367 , 373-375 (1934); Steuterman's Case, supra; Corey's Case, 336 Mass. 172 , 173 (1957) ("an injury . . . becomes a compensable injury if it results in incapacity which need not be continuous but may be irregular . . . .").

Judgment reversed.