MICHAEL CASIERI'S CASE.

CERTIFICATION to the Superior Court under the provisions of the workmen's compensation act of a decision by the Industrial Accident Board, made on May 26, 1933, affirming findings and a decision by a single member after a rehearing held on January 10, 1933, on the question of disability of the employee subsequent to March 1, 1928, and ordering compensation to be paid.

Before the Industrial Accident Board, the insurer presented and the board denied the following requests for rulings:

"1. That the reviewing board is without jurisdiction in the matter of this rehearing.

"2. That the matter of rehearing in the above case was not properly before the single member, and is not properly before the reviewing board.

"3. That no further compensation can now be ordered or made to the employee upon his petition for rehearing.

"4. That by the decision of the reviewing board filed November 10, 1928, that all incapacity terminated on December 28, 1927, from which no appeal was taken, the matter of further payments to the employee became res judicata, and no further payments can now be ordered or made.

"5. That upon the record in this case the employee is entitled to no further payments, and no further payments can be ordered by this board.

"6. That the provisions of St. 1932, c. 117, and of St. 1929, c. 246, authorizing rehearing, are unconstitutional and void both under the Constitution of the United States and under the Constitution of the Commonwealth of Massachusetts."

Material facts appearing in the record certified to the Superior Court are stated in the opinion.

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In the Superior Court, the case was heard by Weed, J., by whose order a decree was entered directing the payment of compensation in accordance with the decision by the board. The insurer appealed.

J. P. Sullivan, (A. F. Bickford with him,) for the insurer.

W. J. McDonald, (E. Nutter with him,) for the claimant.

WAIT, J. This is a proceeding under St. 1932, c. 117, amending G. L. (Ter. Ed.) c. 152, § 12, which seeks further hearings whether the incapacity of the petitioning employee is the result of injury for which he received compensation. The insurer defends on the ground that the statute, at least in the circumstances of this case, is unconstitutional. The material facts are as follows: The employee was injured June 23, 1927. An agreement duly approved was made for payment. Compensation was paid up to December 28, 1927, when, upon application by the insurer, leave was given to discontinue. After a hearing upon an application by the employee, who contended that he had suffered incapacity because of the effects of his injury since December, 1927, a board member, on October 10, 1928, filed a decision: "I am of the opinion that so far as the injury or any effects thereof are concerned all disability, so far as it affects his ability to earn wages is concerned, was at an end in December at the time when he last received compensation. There is therefore no further compensation due him." The employee filed claim for review, on which the reviewing board affirmed and adopted the findings and decision of the single member by decision filed November 10, 1928. No appeal was taken. On a petition for rehearing based on a claim of present incapacity existing since March 1, 1928, a single member heard the parties in January of 1933. The employer and the insurer moved to dismiss, and for answer set up the finding of termination of incapacity, contending that the provisions of Sts. 1929, c. 246; 1932, c. 117, in authorizing such rehearing, were unconstitutional. The single member denied the motion. He found that between the last hearing and August 26, 1929, a condition which totally disabled the employee developed in the leg and foot which had been injured;

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and that there was causal relationship between the accident of June 23, 1927, and this condition. He found that total disability began August 26, 1929, and continues. Compensation was ordered at $12.80 per week from August 26, 1929, to continue in accordance with the terms of the act. The insurer filed claim for review. The reviewing board, after hearing, denied requests, affirmed and adopted the findings and decision of the single member and ordered payments to be continued subject to provisions of the act. January 2, 1934, the Superior Court entered a decree in accord. The insurer appeals.

This case differs in an essential respect from MacKinnon's Case, ante, 37, in which we affirmed a decree granting compensation for a partial incapacity arising after a cessation of payment upon an agreement for compensation, and held that the Industrial Accident Board under G. L. c. 152, § 12, had authority to order payment for incapacity not provided for in the compensation agreement. Here, more than four years after a decision of the board that no incapacity existed - a decision from which no appeal was taken - the statute of 1932 grants further hearing on the issue of incapacity. In the case before us there had been a definite adjudication that no incapacity longer existed. In the earlier case there was no such adjudication. A statute has been enacted, after an adjudication apparently final at the time it was had, providing that such adjudication shall not be considered as final in factor as res judicata at law. The question is the right of the Legislature so to provide under the Constitution of the United States and of this Commonwealth.

The workmen's compensation act as originally enacted, St. 1911, c. 751, Part III, § 12, provided that any weekly payment under the act might be reviewed by the Industrial Accident Board "and on such review it may be ended, diminished or increased" subject to the maximum and minimum amounts fixed by the act "if the board finds that the condition of the employee warrants such action." The original determination, whether the result of agreement, or of finding by single member or reviewing board, and whether or not embodied in a decree of the Superior

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Court (see Kareske's Case, 250 Mass. 220) thus was not a final determination of the issue of extent of disability and payment therefor, Hunnewell's Case, 220 Mass. 351. It could be reviewed on petition of insurer or of employee. By St. 1914, c. 708, § 11, section 12 was amended by striking out the words "at the request of the association [insurer] or of the employee"; and the power of changing the award was thus somewhat broadened. Bartoni's Case, 225 Mass. 349. Murphy's Case, 224 Mass. 592. Section 12 was further amended by St. 1917, c. 297, § 8, to permit review by a single member subject to the ordinary review of a single member's decision. In other respects this court held that the determination of issues in the original proceeding was final. Hurley's Case, 235 Mass. 387. Frizzi's Case, 237 Mass. 460. Kareske's Case, 250 Mass. 220. See also Perkins's Case, 278 Mass. 294. In Brode's Case, 251 Mass. 414, it was decided that a decision of a single member that all incapacity had ceased, from which no review had been claimed and where no rights were reserved, was final so that further application for revision could not be had. Similar decisions were reached in McCarthy's Case, 253 Mass. 553, and O'Neil's Case, 262 Mass. 266. The latter case was decided in 1928. St. 1929, c. 246, approved as an emergency law April 22, 1929, amended § 12 of G. L. c. 152 by adding the following paragraph: "When in any case before the board there appears of record a finding that the employee is entitled to compensation, no subsequent finding by the board or by a member thereof discontinuing compensation on the ground that the employee's incapacity has ceased shall be considered final as a matter of fact or res judicata as a matter of law, and such employee or his dependents, in the event of his death, may I have further hearings as to whether his incapacity or death is or was the result of the injuries for which he received compensation; provided, that if the board shall determine that the petition for such a rehearing is without merit and frivolous, the employee or his dependents shall not thereafter be entitled to file any subsequent petition therefor except for cause shown and in the discretion of the member to whom such

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subsequent petition may be referred, and that, in the event of the death of the employee, such a petition for a rehearing shall be filed within three months from the time of his decease and within one year from the date of the finding terminating his compensation." By St. 1932, c. 117, § 1, the section was further amended by making the provisions of St. 1929, c. 246, applicable where compensation has been paid under an agreement of the parties; and by § 2 where compensation had been paid or agreement made subsequent to January 1, 1925. Brode's Case was decided in 1925. The intent of the Legislature is to permit reexamination of the question of existing disability due to the original injury, and modification of payment to meet the situation found to exist on the reexamination, both uncontrolled by earlier determination that incapacity had wholly ceased.

Broad as is the power of the Legislature, it cannot reopen a decision once made as final according to existing law by a judicial tribunal or a quasi judicial board in the exercise of judicial functions so far as it affects private rights of property. Although the Industrial Accident Board is an administrative tribunal and not a court, its decisions partake of the nature of a court's decisions in their effect upon private property rights. In accord with the cases above cited, the decision of the board that all disability was at an end in December of 1927, was a final decision amounting to a judgment in favor of the insurer. It is immaterial that no decree was entered. Kareske's Case, 250 Mass. 220, 227. The decision made no reservation of rights under the act. Such a judgment is property. Springstun v. Springstun, 131 Wash. 109. Fuller v. Fuller, 49 R. I. 45. Gilman v. Tucker, 128 N. Y. 190. It cannot, constitutionally, be taken away without compensation. Hodges v. Snyder, 261 U. S. 600. McCullough v. Virginia, 172 U. S. 102. Hoyt Metal Co. v. Atwood, 289 Fed. Rep. 453. St. 1929, c. 246, by its terms as amended by St. 1932, c. 117, takes away that property. Moreover, inasmuch as a decree of a court might have issued on the board's decision, we think the principle applicable that a Legislature cannot grant a

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review or rehearing of the judgment or decree of a court where none is provided at the time of the decision.

In speaking of a statute which declared to be superseded a decree of this court confirming a report in a grade crossing proceeding, the justices said: "The final decree . . . was a judgment of a court. The Legislature cannot exercise judicial powers. That is prohibited by the clear words of art. 30 of the Declaration of Rights of our Constitution. Any legislative attempt to that end would be a nullity. Manifestly it is the exercise of judicial power to grant a new trial or a rehearing in a cause in the courts, or to declare ineffective or to reverse, annul, change, modify or affect the judgment of a court." Opinion of the Justices, 234 Mass. 612, 621. See also Bigelow v. Bemis, 2 Allen 496; Arnold & Murdock Co. v. Industrial Commission, 314 Ill. 251. We need not multiply citations.

We find nothing in Ahmed's Case, 278 Mass. 180, cited by the employee, which controls what is here said. The statutes questioned pass beyond the line of legislation with regard to procedure, and, so far as retroactive, must be held to be inoperative. See Hanscom v. Malden & Melrose Gas Light Co. 220 Mass. 1.

The requests denied need not be discussed in detail. In substance they should have been given. It follows that the decree must be reversed. It is in violation of the Fourteenth Amendment to the Constitution of the United States and of arts. 10 and 30 of the Declaration of Rights of the Constitution of this Commonwealth.

Decree must enter for the insurer.

So ordered.