EDWARD F. THAYER'S CASE.

KIRK, J. The employee (Thayer) appeals from a final decree dismissing his claim for double compensation under G. L. c. 152, Section 28, as amended through St. 1943, c. 529, Section 9.

We summarize the facts relating to the injury. In the spring of 1957 the employer, one Fitzgerald, was engaged in the construction of an extension of Route 128 in Gloucester. Thayer was employed by Fitzgerald as an operator of a unit of heavy construction equipment known as a tournapull which was used to carry excavated material to a dumping area. The tournapull weighed about twenty-two tons and would "carry any load put on it, 25 to 30 tons." Considerable skill was required to operate it.

One Winslow was employed by Fitzgerald as a foreman who supervised the operations of the road equipment, including the tournapull.

On the morning of May 1, 1957, Thayer was hauling blasted rock in the tournapull over the "haul road" to the dumping area. The "haul road," approximately one-half mile long, was straight for about one half of its length and then turned to the left at a forty degree angle. Thayer

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operated the tournapull, "loaded to the limit," at a speed of five to eight miles an hour. He testified that because of the condition of the road and the weight of the load it was "impossible to operate the equipment any faster . . .; any faster would be dangerous and . . . suicide."

After the lunch period on May 1, when Thayer was driving the tournapull with a maximum load, Winslow stopped him and told him "that he could be going faster, that they were not getting enough loads." Thayer replied that he could not "possibly be going any faster."

Winslow was irritated and told Thayer to push over stating "that he [Winslow] would try it and see if he . . . could not get more speed." Thayer objected that Winslow was inexperienced in the operation of the tournapull. Winslow, nevertheless, took over the controls. Thayer seated himself on a box in the cab to the right of the controls. Winslow drove the tournapull down the "haul road," periodically shifting to higher gears. When he reached a speed of ten miles an hour, Thayer cautioned Winslow that "he was `revving' it up a little too fast." Winslow replied that he knew what he was doing and told Thayer to "sit there and be quiet." A similar warning by Thayer at fifteen to twenty miles an hour was disregarded. As the tournapull approached the forty degree left turn at that speed, Thayer told Winslow to "brake it down" to a reasonable speed. Winslow refused. Winslow was unable to negotiate the turn. The tournapull "jackknifed." Thayer was thrown out and injured.

The board found that "Winslow was intrusted with and exercising the powers of superintendence on work being done by . . . [Fitzgerald]; . . . [Thayer] was given orders by him and was under his supervision. . . . [T]he operation of the tournapull by . . . Winslow, at maximum speed, despite the pleading and repeated warnings by . . . [Thayer], an experienced operator, involves conduct of a quasi criminal nature; . . . Winslow was doing something with the knowledge that it was likely to result in serious injury and displayed a wanton and reckless disregard of its probable consequences."

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The board concluded "that the injury suffered by . . . [Thayer] was as [a] result of the serious and wilful misconduct of . . . Winslow, a person regularly intrusted with and exercising the powers of superintendence for the employer" and ordered "that the insurer pay . . . [Thayer] the extra or double compensation to which he is entitled under Section 28 of the Act, as amended."

The findings and decision of the board must be sustained unless lacking in evidential support or tainted by some error of law. Hachadourian's Case, 340 Mass. 81, 85, and cases cited.

General Laws c. 152, Section 28, provides in pertinent part: "If the employee is injured by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. In case the employer is insured, he shall repay to the insurer the extra compensation paid to the employee. If a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only."

In support of the decree the employer contends that: (I) the evidence does not support the board's finding that Winslow's action constituted "serious and wilful" misconduct; (II) although Winslow was regularly intrusted with the powers of superintendence, the evidence does not support the board's finding that in causing the injury Winslow was "exercising the powers of superintendence"; and (III) Thayer's claim for extra compensation under Section 28 was not seasonably filed. We deal with each of these contentions.

(I) The nature of the misconduct which comes within the ambit of the phrase "serious and wilful" in Section 28 was fully discussed by Qua, J., in Scaia's Case, 320 Mass. 432, 433-434, where, among other things, it was stated (citing Burns's Case, 218 Mass. 8, 10) that such misconduct "`is much more than mere negligence, or even than gross or culpable negligence. It involves conduct of a quasi criminal nature, the intentional doing of something either with the

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knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences.'"

"The question whether an employee's . . . [injury] was caused `by reason of . . . serious and wilful misconduct . . .' is one of fact" (Diaduk's Case, 336 Mass. 5, 7) and necessarily depends in each instance on the particular facts of the case presented. We have reviewed the employer's arguments on this factual question. We are unable to say that the board was not warranted in finding that the operation of this heavy, fully loaded piece of equipment by Winslow, an inexperienced driver, at a reckless rate of speed, in total disregard of the repeated warnings by an experienced driver constituted "serious and wilful misconduct" within Section 28.

(II) The phrase, "exercising the powers of superintendence," in G. L. c. 152, Section 28, is substantially identical with that used in Section 1 of the Employer's Liability Act [Note 1] with reference to the negligence of a superintendent. In interpreting the quoted phrase this court has said, "The employer is not answerable for the negligence of a person intrusted with superintendence, who at the time, and in doing the act complained of, is not exercising superintendence, but is engaged in mere manual labor, the duty of a common workman. . . . Unless the act itself is one of direction or of oversight, tending to control others and to vary their situation or action because of his direction, it cannot fairly be said to be one in the doing of which the person intrusted with superintendence is in the exercise of superintendence." Cashman v. Chase, 156 Mass. 342, 344. Or, as stated by Holmes, C.J., in Joseph v. George C. Whitney Co. 177 Mass. 176, 178, "we are of opinion that by a true construction of the statute the superintendence must contribute as such, and that when . . . it had nothing to do

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with the injury qua superintendence, the case is not within the act." See Buckley v. Dow Portable Elec. Co. 209 Mass. 152, 153. [Note 2]

We think that this interpretation should be given to the parallel phrase in G. L. c. 152, Section 28, as amended. A majority of the court take the view that under this interpretation it could be found, as the board did find, that Winslow was exercising the powers of superintendence and that the exercise of the powers of superintendence could justifiably have been found to have contributed proximately to Thayer's injury. See and compare Sarrisin v. S. Slater & Sons, 203 Mass. 258, Buckley v. Dow Portable Elec. Co. 209 Mass. 152, Durgin's Case, 251 Mass. 427, with McPhee v. New England Structural Co. 188 Mass. 141, Hourigan v. Boston Elev. Ry. 193 Mass. 495, Coates v. Soley, 194 Mass. 386, Shannon v. Shaw, 201 Mass. 393.

(III) With regard to the third contention of the employer, that Thayer's claim for extra compensation was not seasonably filed, we state the time factors. The injury to Thayer occurred on May 1, 1957. Thereafter, Thayer and the employer's insurer executed an agreement (G. L. c. 152, Section 6) providing for payment to Thayer of compensation due him under G. L. c. 152, Section 26. Weekly payments to Thayer have been made under this agreement. [Note 3] The claim for extra or double compensation under Section 28 was filed on July 25, 1960.

The resolution of the issue as to whether the claim for extra compensation was seasonably filed requires an analysis of the pertinent sections of the statute.

(a) We deal first with the scope of the provisions of Section 41, which so far as germane are: "No proceedings for compensation for an injury shall be maintained unless a notice

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thereof shall have been given to the insurer or insured as soon as practicable after the happening thereof, and unless the claim for compensation with respect to such injury has been made within six months after its occurrence . . .." At the outset we hold that this provision relative to notice of injury and making of claim applies to proceedings brought under Section 28 (for "extra" or "double" compensation) as well as to proceedings under Section 26 for ordinary compensation. To support this conclusion we do not think it is necessary or helpful to dwell upon theories of law (e.g., whether Section 28 provides for an imposition of a penalty upon the employer rather than strictly a compensatory award to the employee) which are extraneous to the Workmen's Compensation Act itself. This court said in Royal's Case, 286 Mass. 374, 378: "The workmen's compensation act was a new kind of legislation in this Commonwealth. It differed in almost every essential particular from existing equitable or common law remedies. It substituted an optional method of accident insurance with specified ranges of payments in place of common law rights and liabilities for large classes of employees and employers. It provided a procedure all its own. . . . [T]he legislative intent . . . was to cover the whole field to which the statute relates and to supersede all other provisions of law touching that subject." We are convinced from a reading together of Sections 26, 28, and 41, all of which (in the pertinent parts quoted below [Note 4]) were in the original act, that the word "compensation,"

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as used in Section 41, was used generically and was intended by the sponsors and enactors of the original legislation to comprehend all proceedings available under the statute to obtain monetary awards for an injury to an employee. [Note 5] The extra or double award which enures to the benefit of the injured employee under Section 28 constitutes, in our opinion, compensation as that term is used in the Workmen's Compensation Act. Accordingly, Thayer's claim for double compensation falls within the requirement of Section 41 that a claim for compensation be filed within six months after the occurrence of the injury.

(b) It follows from our construction of Section 41 that Thayer's claim for double compensation must fail, unless the late filing is excused under the exculpatory provisions of Section 49 which we shall now discuss. So far as relevant to the question before us, Section 49 provides: "Failure to make a claim within the time fixed by section forty-one shall not bar proceedings under this chapter if it is found that it was occasioned by mistake or other reasonable cause, or if it is found that the insurer was not prejudiced by the delay. In no case shall failure to make a claim bar proceedings if the insurer has executed an agreement in regard to compensation with the employee or made any payment for compensation under this chapter." It seems clear that the general purpose of the quoted provisions is to preserve the right of the employee to compensation where the failure to make the claim within the time prescribed is not due to the employee's fault or where, even though he may be at fault, the rights of the party by whom compensation would have to be paid have not been prejudiced by the delay. In the ordinary case under Section 26, it is the "insurer" (see c. 152, Section 1 [7]) who must pay the compensation. Hence the question of prejudice to the "insurer" is given significance under Section 49 (and in notice provisions in Section 44). In cases brought under Section 28, however, where double compensation is sought, although

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the "insurer" must in the first instance pay the extra compensation to the employee, it is provided that "[i]n case the employer is insured, he shall repay to the insurer the extra compensation paid to the employee," and, further, that "[i]f a claim is made under this section, and the employer is insured, the employer may appear and defend against such claim only." It was in the light of these provisions that we said in West's Case, 313 Mass. 146, 154, "The ultimate burden . . . [of paying extra compensation] is placed upon the employer" who "becomes a real party in interest." These considerations lead us to think that the exculpatory provisions of Section 49 must in fairness be read so that where a late claim for extra compensation under Section 28 is involved the rights not only of the insurer but of the employer as well be guarded against prejudice caused by the delay in filing the claim.

With this principle in mind, we address ourselves, in the inverse order, to the provisions of Section 49 which are relevant to the issue before us. First, we think that neither the fact that an agreement has been made between the employee and the employer's insurer for the payment of compensation under Section 26, nor the fact that such compensation, without agreement, has been paid by the insurer to the employee will per se excuse the failure of the employee to file within the time prescribed in Section 41 a claim for extra compensation under Section 28. The reasons which induced the Legislature to declare that a claim would not be barred by late filing where there was an agreement to pay or payment of compensation by an insurer are so apparent in relation to a claim under Section 26 as not to require lengthy exposition. Payment of ordinary compensation or an agreement in regard to ordinary compensation by an insurer at least may be said to be a recognition by the insurer that the employee has asserted a claim that he has sustained an injury which arose out of and in the course of his employment. There are, however, other elements already adverted to and subsequently to be considered (serious and wilful misconduct; exercising powers of superintendence) which are essential to the establishment

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of a claim under Section 28, but which are not essential to the establishment of a claim under Section 26. These additional elements cannot, by necessary implication, be said to be an integral part of a voluntary arrangement for payment of ordinary compensation. The absence of these essential elements has a bilateral effect with respect to a late claim for extra compensation under Section 28. On the one hand, an employee who is receiving or who has an agreement with his employer's insurer to receive compensation under Section 26 cannot for that reason alone be considered justified in not filing a claim for extra compensation as required in Section 41. On the other hand, neither an employer, who may play no part in the payment of, or in an agreement to pay, compensation under Section 26, nor an insurer who has paid or agrees to pay compensation under Section 26, can thereby fairly be considered to have waived conclusively the issue of prejudice with respect to a late claim for extra compensation under Section 28. Accordingly, we hold that the payment to Thayer of compensation under Section 26 by Fitzgerald's insurer does not of itself entitle Thayer to file a claim for compensation under Section 28 after six months from the time of injury.

We next consider the provision of Section 49 which states that "Failure to make a claim within the time fixed by section forty-one shall not bar proceedings under this chapter . . . if it is found that the insurer was not prejudiced by the delay." Reading this provision in consonance with the principle of fairness earlier stated it appears to us that in order to excuse the late filing of a claim for extra compensation it must be shown that the delay prejudiced neither the insurer nor the employer. Lack of prejudice to the insurer alone does not excuse the late filing of a claim under Section 28 because, as we have already indicated, the employer who is bound to reimburse his insurer is a "real party in interest."

In the case before us the board has found that neither the insurer nor the employer was prejudiced by the late filing of the claim under Section 28. Specifically, the board found that the insurer "had ample opportunity to investigate all phases of the case and in all probability had done so prior

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to . . . payment of compensation" and that the employer "had full knowledge of the circumstances of the injury." We recognize that knowledge of facts which would negative prejudice in the case of a claim under Section 26 is not necessarily inclusive of facts which would negative prejudice in the case of a claim under Section 28 for the reason, already alluded to, that a claim under Section 26 requires only that the employee's injury be one "arising out of and in the course of his employment" whereas a claim under Section 28 requires in addition that the injury be caused "by reason of the serious and wilful misconduct of an employer or of any person regularly intrusted with and exercising the powers of superintendence." There was evidence before the board that, after driving the injured Thayer to the hospital, Winslow, who caused the accident, reported the accident to his employer; that within one-half hour of this report Winslow was discharged; and that thereafter the employer's insurer and Thayer entered into the agreement for compensation under Section 26. Both Thayer and Winslow testified at the hearing. No contention is made that witnesses were unavailable because of the delay, or that evidence has been lost. On this record we are unable to say that the finding of lack of prejudice as to both insurer and employer was without evidential support. It could be found that shortly after the injury both had knowledge of, or at least full opportunity readily to discover, facts which could establish their respective liabilities under Section 28.

The view which we have taken of the board's finding on this exculpatory clause of Section 49 makes it unnecessary to consider the question whether, under the remaining clause of Section 49, there was reasonable cause for Thayer's failure to file his claim under Section 28 until July 25, 1960.

The decree is reversed. A decree is to be entered that payment of extra compensation be made to the claimant as awarded by the board. Costs and expenses of this appeal under G. L. c. 152, Section 11A, shall be allowed by the single justice.

So ordered.