LOUISE M. LONGERATO'S CASE.

WILKINS, C.J. The employee, a secretary employed by Hurlbut Paper Company (Hurlbut), appeals from a decree

Page 285

of the Superior Court entered on August 4, 1965, ordering that "the decision of the reviewing board filed on October 13, 1964, be . . . reversed." See, however, Johnson's Case, 242 Mass. 489, 493-494. The decree gave as its reason that no petition for rehearing under G. L. c. 152, Section 12 (second paragraph), [Note p285-1] and under Rule II E [Note p285-2] of the Industrial Accident Board was filed by the employee with the board prior to the hearing held before the single member on December 5, 1963, and February 12, 1964, and that, therefore, the single member lacked jurisdiction.

On March 6, 1961, the employee fell and sustained a back injury, for which Liberty Mutual Insurance Company (Liberty) paid total compensation from March 7, 1961, to May 9, 1961. Thereafter she received full pay but worked only part time until the latter part of August, when she resumed her full duties.

On November 2, 1961, the employee pulled out a drawer to a filing cabinet. As a result, she claimed that the original injury was aggravated. On February 5, 1962, she filed a claim for injury giving the date as November 2, 1961. On May 8, 1962, there was a hearing before a single member on two issues. As to Liberty, the issue was whether the employee sustained an industrial injury subsequent to her return to work as a result of the injury of March 6, 1961. As to Hurlbut, the issue was whether the employee sustained an injury arising out of and in the course of her employment on November 2, 1961, and whether her disability,

Page 286

if any, subsequent to December 5, 1961, [Note p286-1] was causally related to an alleged injury on November 2, 1961. The single member filed a report on July 18, 1962. The reviewing board on February 11, 1963, affirming and adopting the findings of the single member, denied both (1) the claim against Liberty for further compensation as a result of the original injury on March 6, 1961, and (2) the claim against Hurlbut, self-insurer, because of the alleged injury on November 2, 1961.

There was a hearing on December 5, 1963, and February 12, 1964, before another single member, who filed a report on May 8, 1964. Under Section 12 it was proper to hold this hearing "as to whether . . . [her] incapacity . . . is . . . the result of the injuries for which . . . [she] received compensation." It was without significance that there has been no reservation of the employee's future rights, or that no appeal was taken from the previous decision of the reviewing board on February 11, 1963, dismissing the claim. Falcione's Case, 305 Mass. 433, 435. Amon's Case, 315 Mass. 210, 216.

In the report of May 8, 1964, (1) Liberty was ordered to pay further compensation for periods subsequent to December 5, 1961; and (2) the claim against the self-insurer was again denied. There was a hearing before the reviewing board on August 10, 1964. On October 13, 1964, the board filed a decision affirming and adopting, with one minor exception now immaterial, the findings and decision of the second single member. The board also stated that they found that the decision of the first single member and that of the reviewing board filed on February 11, 1963, "are res judicata only as to the issue of the period of incapacity being claimed at that time." The claim for incapacity against the self-insurer was dismissed, and the employee's rights to further compensation from February 12, 1964, were specifically reserved.

Page 287

This is the posture of the case wherein was made the decree which is the subject of this appeal.

1. There was error in the decree. The fact that no question of rehearing was raised before the single member or the reviewing board might be a sufficient ground for disposing of this aspect of the case. Gustafson's Case, 303 Mass. 397, 401. Demetre's Case, 322 Mass. 95, 101. Vaz's Case, 342 Mass. 495, 499. But in our opinion this challenge to jurisdiction is entitled to a disposition expressly based on the merits.

2. The substantial issue is what properly should have been the decree of the Superior Court upon the decision of the reviewing board of October 13, 1964. See Lopes's Case, 277 Mass. 581, 585; Walsh's Case, 281 Mass. 228, 232. In the decision of October 13, 1964, the decisive findings are (1) that the employee's incapacity was due solely to the accident of March 6, 1961, and (2) that the incident of November 2, 1961, did not contribute to the incapacity. These findings had evidential support and were free of error of law. Webb's Case, 318 Mass. 357. Nartowicz's Case, 334 Mass. 684, 687. Hartman's Case, 336 Mass. 508, 511. The testimony of Dr. Sandick, the attending physician, notwithstanding Liberty's arguments, warrants the findings. This left the liability solely that of Liberty as the insurer covering the risk at the time of the most recent injury which bore a causal relation to the disability. Morin's Case, 321 Mass. 310, 312. Rock's Case, 323 Mass. 428, 429. Casey's Case, 348 Mass. 572, 574, and cases cited.

The second finding was in accord with the decision of the reviewing board on February 11, 1963, dismissing the claim against the self-insurer. The latter decision in that respect was res judicata. Its scope was not within the exceptions in Section 12, which applies only where there is a decision by the reviewing board or a member discontinuing compensation on the ground that incapacity has ceased. No compensation thereon was ever paid by the self-insurer, and no compensation therefor was ever awarded by the board. See Brode's Case, 251 Mass. 414; Ziccardi's Case, 287 Mass. 588.

Page 288

3. The decree is reversed. The case is remanded to the Superior Court for the entry of a new final decree in accordance with this opinion. Costs of appeal shall be in the discretion of the single justice.

So ordered.