Frizzi's Case

Crosby, J. It is agreed that the employee received an injury arising out of and in the course of his employment on August 20, 1919; that his average weekly wages were $21; and that he -was paid compensation up to October 15, 1919, on which date the payments were discontinued with the approval of the Industrial Accident Board. St. 1911, c. 751, Part II, § 4, as amended by ■St. 1916, c. 90, § 1. A member of the board, appointed under the provisions of Part III, § 12, as amended, on January 20, 1920, heard the parties on the question of incapacity and made the following findings -and rulings: “that this employee . . . has not sustained the burden of proving that he has been totally incapacitated, because of conditions due to his injury, beyond the date upon which the board approved the discontinuance of compensation payments, October 15, 1919 . . . that this employee has an earning capacity which he has not established. The discontinuance of October 15, 1919, is hereby further confirmed, — the employee’s rights being .reserved under Part III, § 12 of the act.” [462] The Industrial Accident Board, on review, found and ruled: “that this employee was totally incapacitated for work for a period of seven weeks subsequent to October 15, 1919, the date upon which discontinuance of compensation was approved under Part II, § 4 of the act; that compensation is due the employee in the sum of ninety-eight dollars ($98); and that all incapacity for work terminated on December 3, 1919.” It is the contention of the insurer that the board was without authority to act under Part III, § 12. Although the payments for total incapacity were discontinued with the approval of the board, there was no adjudication that all incapacity had ceased. The effect of the order was not a decision on the merits. The suspension of payments by the insurer, with the ex parte approval of the board, is to be construed as leaving open for future determination the question whether, after hearing, the payments were rightly discontinued, and, also, the question whether partial incapacity existed, and if so, its extent. That determination is what the board undertook to make by the decision now before us. Discontinuance of payments with the approval of the board on the basis of total incapacity was not the equivalent of a decision that there was no incapacity. The board has now made the decision that all disability terminated on December 3, 1919, which is final; plainly it had authority to make it. In this respect the case is governed by Hunnewell’s Case, 220 Mass. 351., See Lemieux’s Case, 223 Mass. 346. The finding of the board that the employee was totally incapacitated for work for a period of seven weeks from October 15, 1919, cannot be said to have been unwarranted. Decree affirmed.