For the petitioner-respondent, Strong & Strong (Theodore Strong).
For the respondent-prosecutor, David T. Wilentz, Attorney-General, and Robert S. Hartgrove, Assistant Attorney-General.
Before Justices Case and Donges.
The opinion of the court was delivered by
CASE, J. The Workmen's Compensation Bureau found for the petitioner, and the Middlesex Pleas affirmed on appeal.
Petitioner was employed by the Highway Department as a laborer on the roads. On January 31st, 1935, while at work, he was hit by a skidding automobile and severely injured. He received a comminuted fracture of the left femur extending into the knee joint, suffered a concussion of the brain and was unconscious for hours following the accident. The
department paid petitioner temporary disability from January 31st, 1935, to April 20th, 1937, at the rate of $13.33 per week, amounting to $1,590.08, and permanent disability of the left leg for seventy weeks, from April 20th, 1937, to August 23d, 1938, at the same rate amounting to $933.10; and it paid medical and hospital expenses in his behalf in the amount of $1,323.75. The defendant refused to make further payments, and the workman thereupon, February 15th, 1940, filed his petition for compensation. The department answered and admitted that the petitioner had the accident, that the department had notice thereof, that petitioner was at the time in the employ of the department and that the accident arose out of and in the course of the employment.
Hearings were begun on November 8th, 1940. Petitioner then testified at length regarding the facts of the accident, the subsequent operations, hospitalizations and treatment and his then condition, and gave the history and description of the injuries and their effects. For reasons that are not stated in the record, but by fair inference lie in the convenience of counsel and the medical witnesses, the further hearings were desultory and continued over a long period -- February 20th, 1941, June 6th, 1941, July 18th, 1941, August 1st, 1941; and the final determination of facts and rule for judgment was made on December 23d, 1941. The deputy commissioner seems to have anticipated some delay because on November 8th, 1940, immediately following the hearing, he announced that on the evidence then taken the petitioner was entitled to a further award for temporary disability and that because of his "necessitous condition" an allowance of four weeks' additional temporary disability would be immediately awarded, subject to adjustment on the final disposition. No objection was made to that course, and on November 15th, 1940, the findings were incorporated into a preliminary determination of facts and rule for judgment, within which was included the direction that "a final hearing of the claim be held as soon as convenient." On November 22d the attorneys for both sides were again before the Commissioner, who then made a supplemental determination and finding that two weeks' additional compensation should go to the petitioner for temporary
disability and that the final hearing be had on December 6th, 1940. That direction as to time of hearing was not observed.
The final adjudication, made on December 23d, 1941, found that the petitioner had suffered a permanent disability equal to fifty per centum of total and awarded 250 weeks' compensation at the rate of $13.33 per week, less the 70 weeks already paid, and recited, ...