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Huber v. New England Tree Expert Co.

Decided: August 31, 1948.

JOHN HUBER, PETITIONER-DEFENDANT,
v.
NEW ENGLAND TREE EXPERT CO., RESPONDENT-PROSECUTOR



On writ of certiorari.

For the petitioner-defendant, David I. Stepacoff and James F. Patten.

For the respondent-prosecutor, James J. Carroll.

Before Case, Chief Justice, and Justices Burling and Jacobs.

Case

The opinion of the court was delivered by

CASE, CHIEF JUSTICE. This is the return of a writ of certiorari which brings up a determination and remittitur by the Middlesex County Court of Common Pleas in a matter

under the Workmen's Compensation Act wherein the Bureau had dismissed the claimant's petition. The order of the Court of Common Pleas directed:

"1. That the cause be and the same is hereby remanded to the Workmen's Compensation Bureau for the taking of additional evidence by either or both parties.

"2. That the case shall proceed as if the Respondent had set up in its Answer the affirmative defense that any increased disability that Petitioner may have suffered since the award of compensation under the Original Petition is due, not to the accident of June 15th, 1943, but to the natural progress of chronic alcoholism, with which the Petitioner is alleged to be afflicted.

"3. That the case shall proceed as if the Petitioner had set forth in the pleadings that the accident of June 15th, 1943, is the cause of Petitioner's present existing disability in itself or by way of an aggravation of a pre-existing physical condition."

The order is in effect an amendment of the pleadings and a direction to the Workmen's Compensation Bureau to take further testimony upon the pleadings as thus amended. It is contended by the prosecutor of the writ that the Court of Common Pleas erred in that judicial action. For the reasons stated below we conclude that the contention is sound.

Claimant met with an industrial accident while in the employ of prosecutor on June 15th, 1943. As a result he was, following a petition and an answer filed in the Bureau and pursuant to a determination and judgment thereon, paid two weeks' temporary disability benefits and the sum of $800 for permanent disability which represented eight per centum of total. On June 8th, 1945, he filed with the Bureau the present petition in which he made claim for increased disability arising from the accident and for further medical and hospital treatments. The employer filed an answer wherein it denied that claimant had suffered the alleged increased disability. Therein lay the issue which was accepted by the parties ...


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