Home SAMUEL SNIDER'S CASE.

334 Mass. 65

January 6, 1956 - May 1, 1956

Suffolk County

Present: QUA, C.J., RONAN, SPALDING, WILLIAMS, & COUNIHAN, JJ.

Workmen's Compensation Act, Medical services and incidental expenses. Words, "Unusual."

The obligation of a workmen's compensation insurer to furnish an injured employee medical and hospital services, medicines, and incidental expenses in an unusual case under G. L. (Ter. Ed.) c. 152, § 30, as appearing in St. 1943, c. 181, did not cease at the time when the maximum amount payable under § 34, as amended, for total incapacity had been paid to him where he was also awarded compensation for total and permanent incapacity under § 34A, as amended. [67-68]

Evidence in a workmen's compensation case warranted findings by the Industrial Accident Board that the case of an employee, whose initial injury was a blow on the head which was not particularly severe but who was laid off six months thereafter because of unsatisfactory work apparently caused by head symptoms and who thereafter suffered from a post-traumatic neurosis and was afflicted with defective vision, stabbing pain behind the eyes, angina pectoris and hypertension, was an "unusual" one within the meaning of G. L. (Ter. Ed.) c. 152, § 30, as appearing in St. 1943, c. 181, and that "adequate and reasonable" medical treatment rendered by a psychiatrist, a cardiologist and a family physician to the employee, and drugs prescribed by them, were furnished in connection with such conditions; and on such findings the board properly ordered the insurer to pay reasonable charges for the treatment and the expense of the drugs pursuant to that section. [69-70]

There was no error on the part of the Industrial Accident Board in a workmen's compensation case in ordering the insurer under G. L. (Ter. Ed.) c. 152, § 30, as appearing in St. 1943, c. 181, to pay for transportation by taxi furnished to the employee, solely upon his own request and not as part of a physician's treatment, to and from a hospital and physicians' offices where evidence supported a finding by the board that the taxi hire was "necessarily incidental" to medical services within that section rendered to the employee as a result of his injury. [70]


CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board under the workmen's compensation act.

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The case was heard by Rome, J.

Thomas D. Burns, (Lee M. Friedman, Leon Birnbaum & Alex B. Burke with him,) for the insurer.

Laurence S. Locke, (Bertram A. Petkun with him,) for the claimant.


SPALDING, J. On April 2, 1945, the employee, a mechanic employed by Northeast Airlines, received an injury arising out of and in the course of his employment when he struck his head against the underside of an airplane rudder. He was awarded total incapacity compensation from April 8 to May 28, 1945, and from December 3, 1945, to February 6, 1950, when the maximum payments under G.L. (Ter.Ed.) c. 152, § 34, as amended, had been reached. In 1951, after a hearing, the employee was awarded permanent and total disability compensation of $20 a week under § 34A, inserted by St.1935, c. 364, as amended, and he is still receiving that compensation.

None of the awards described above is the subject of the present appeal. This appeal arises out of a proceeding before the board to compel the insurer, under G.L. (Ter.Ed.) c. 152, § 30, as it stood at the time of his injury, to pay for medical services rendered to him in connection with his illness, and expenses incidental thereto. These services consisted of medical treatment rendered by a psychiatrist (Dr. Landau), a cardiologist (Dr. Ayman), and a family physician (Dr. Golden); the incidental expenses were for drugs and taxi hire.

The issues before the board were (1) whether the cases was an "unusual" one or one "requiring specialized or surgical treatment" within the meaning of G.L. (Ter.Ed.) c. 152, § 30, as appearing in St.1943, c. 181; (2) whether the services of Doctors Landau, Ayman and Golden were adequate and reasonable and whether their charges therefor were reasonable; and (3) whether the amounts expended for drugs and taxi hire were expenses which the insurer was required to pay under § 30.

The board found that the case was an unusual one requiring "specialized and surgical treatment"; that the services

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rendered by the three physicians were "adequate and reasonable"; and that the charges therefor, as reduced by the board, were reasonable. The board likewise found that the amounts expended for drugs and for taxi hire for the transportation of the employee to and from a hospital and doctors' offices were expenses within the meaning of § 30. The board ordered the insurer to pay for these services and expenses. In the Superior Court a decree was entered in accordance with the board's decision, from which the insurer appealed.

The employee's right to compel the insurer to pay for medical services and incidental expenses is found in St.1943, c. 181. [Note p67-1] See amendments by St.1946, c. 233, and St.1948, c. 159. Relying on Meuse's Case, 270 Mass. 29 , the insurer argues that its obligation to pay for such services and expenses came to an end when the maximum amount payable under § 34 had been paid. We are of opinion that Meuse's Case is not controlling. That case was decided in 1930 prior to the enactment of St.1935, c. 364 (now § 34A), which provided for payment of compensation for "total and permanent" incapacity after an employee had received the maximum payments for total incapacity under § 34. It was there held that the obligation of the insurer to pay for medical and hospital services in an unusual case did not extend beyond the compensation period fixed by the act, then § 34. But with the enactment of § 34A the board had jurisdiction to order payment of compensation for permanent and total incapacity after the maximum payments

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allowed by § 34 had been reached, and that jurisdiction was exercised here. On the reasoning in Meuse's Case a necessary concomitant to this enlargement of the board's jurisdiction is an extension of its authority to order the insurer to pay for medical and hospital services and expenses incidental thereto, for that case decided in effect that the board's jurisdiction to order payments for such services and expenses was coextensive with its jurisdiction to order compensation payments. The fact that by St.1948, c. 159, which was not applicable to the case at bar, the Legislature dealt expressly with the question here presented, does not convince us that prior to the amendment the law was otherwise. [Note p68-1]

Under the statute here applicable, St.1943, c. 181, the obligation to furnish the employee with medical and hospital services and expenses necessarily incidental thereto for a period in excess of two weeks exists only "in unusual cases or cases requiring specialized or surgical treatment." [Note p68-2] The board, as stated above, found that the case was unusual and was one requiring specialized and surgical treatment. Since the former finding was warranted by the evidence and was sufficient to justify the board's decision, we lay to one side, without intimation to decision, the question whether this was a case requiring "specialized or surgical treatment." See Haggerty's Case, 298 Mass. 466 .

In a number of decisions this court has stated the factors that are pertinent in determining whether a case is "unusual." In none of them did the court undertake to define the meaning of the word, but has considered in each case whether the board in its discretion could properly reach its conclusion on the evidence before it. Huxen's Case, 245 Mass. 244 . Rys' Case, 245 Mass. 244 . Moore's Case,

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255 Mass. 533 . Meuse's Case, 262 Mass. 95 . "The nature of the injury is of importance in deciding whether the case is an unusual one within the statute. But the cause of the injury or the unusual nature of the happening [134 N.E.2d 20] is not the final test. The statute has reference to injuries which develop unexpected or unusual complications, requiring the services of experts or unusual treatment." Moore's Case, 255 Mass. 533 , 535-536. Meuse's Case, 262 Mass. 95 , 98.

The employee's injuries here could be found to be unusual when all of the features of the case are considered together. His initial injury, to be sure, was a blow on the head that was not particularly severe. He was able to work for three days before receiving medical treatment, and after a series of tests which were negative he commenced working again, only to be laid off after six months because of unsatisfactory work apparently caused by his head symptoms. There was evidence that since that time his condition has shown steady deterioration and that he is suffering from a posttraumatic neurosis which has resulted in subjective or emotional symptoms of pain in his head and chest. These symptoms, it could be found, have seemingly become organic in nature and the employee is now afficted with defective vision, stabbing pain behind the eyes, angina pectoris, and hypertension. We are of opinion that the finding of the board that this was an unusual case was warranted.

The insurer argues that, even if the employee is entitled to medical services and expenses, any such right is limited to services and expenses incurred in treatment of the particular condition for which he is receiving compensation. It contends that the services of the three physicians and the drugs prescribed by them for which payment is sought had no reference to the condition for which the employee is receiving compensation under § 34A. We find no merit in this contention. There is ample evidence in the record in support of the board's finding that the services rendered by the above mentioned doctors were furnished in connection with the persistent complaints and symptoms of the

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employee resulting from his original injury. The applicable statute, St.1943, c. 181, expressly provides for the furnishing of "medicines if needed." The board's finding that the expenses for drugs were incurred as a result of prescription by the attending physicians was warranted by the evidence, and it rightly ruled that they were expenses within the meaning of the statute.

The insurer also argues that the board erred in ordering the insurer to pay the taxi bill incurred by the employee in being transported to and from a hospital and doctors' offices. The insurer's position is that it is not liable for services which are not part of a physician's treatment and which are rendered solely upon an employee's request. For this proposition it cites Golden's Case, 240 Mass. 178 , where this court reversed a decree ordering an insurer to pay the fees of a masseuse employed by an injured employee at his own request and not under the direction or control of a physician. That case is authority for the proposition that treatments which are not given by order of or under control of a physician are not "medical... services" within the meaning of the statute, but it does not aid the insurer here. By reason of an amendment, St.1927, c. 309, § 5, enacted after that decision the insurer was required to pay also for "expenses necessarily incidental to such services." This is broad enough to include matters not embraced by the words "medical ...services" such as transportation to and from hospitals or doctors' offices, provided such transportation is reasonable necessary. There is sufficient evidence in this record to support the board's finding that the taxi hire was "necessarily incidental" to the medical services furnished to the employee.

The decree is affirmed. The employee's request that the whole costs of the proceeding be assessed against the insurer under § 14 is denied, for it cannot fairly be said that the case was defended without reasonable ground. Costs and expenses of this appeal under G.L. (Ter.Ed.) c. 152, § 11A, inserted by St.1945, c. 444, as amended, shall be allowed by the single justice.

So ordered.


FOOTNOTES

[Note p67-1] The material portions of St.1943, c. 181, are: "During the first two weeks after the injury, and, in unusual cases or cases requiring specialized or surgical treatment, in the discretion of the department, for a longer period, the insurer shall furnish adequate and reasonable medical and hospital services, and medicines if needed, together with the expenses necessarily incidental to such services. The employee may select a physician other than the one provided by the insurer; and in case he shall be treated by a physician of his own selection, or where in case of emergency or for other justifiable cause a physician other than the one provided by the insurer is called in to treat the injured employee, the reasonable cost of the physician's services shall be paid by the insurer, subject to the approval of the department. Such approval shall be granted only if the department finds that the employee was so treated by such physician or that there was such emergency or justifiable cause, and in all cases that the services were adequate and reasonable and the charges reasonable."

[Note p68-1] It was there provided that the provisions of § 30 "shall be applicable so long as such services are necessary, notwithstanding the fact that maximum compensation under other sections of this chapter may have been received by the injured employee."

[Note p68-2] Section 30, by reason of St.1946, c. 233, § 1, now provides that the "insurer shall furnish to an injured employee adequate and reasonable medical and hospital services, and medicines if needed, together with the expenses necessarily incidental to such services."