Donovan's Case

By the Court. It is undisputed that the employee in 1917, while working for an earlier employer, sustained a hernia for which he underwent an operation. Thereafter he entered the employ of the subscriber; and in November, 1919, he sustained an injury arising out of and in the course of that employment, whereby tissues near the scar of the first operation gave way and a second operation for hernia was performed. Compensation was paid by agreement for a time, and then discontinued in January, 1920. Soon after the employee filed a request for hearing, which he subsequently withdrew. In fact he then was working for another employer. In May or June, 1921, claim was revived for further compensation for incapacity on account of the November, 1919, injury. The only question is that of such incapacity. The Industrial Accident Board found on review, reversing the decision of the single member, that the employee had not proved that he had been incapacitated, since the discontinuance of compensation in January, 1920, as a result of any injury received in the course of or arising out of his employment by the subscriber. In order to recover the employee was bound to prove that fact. Sponatski’s Case, 220 Mass. 526. It was purely a question of fact. There was ample evidence, which need not be narrated, to justify the finding of the board. The finding of the board is not subject to review on its merits. Pass’s Case, 232 Mass. 515. Barbagallo’s Casé, ante, 86. Decree affirmed.