
    Stephen De Felippo’s Case.
    Suffolk.
    March 19, 1923.
    May 25, 1923.
    Present: Rugg, C.J., DeCotjrcy, Crosby, Pierce, & Carroll, JJ.
    
      Workmen’s Compensation Act, Procedure: filing of claim.
    An employee, who, within the provisions of the workmen’s compensation act, was injured on September 15 by being buried underneath a load of sand and gravel, was treated by a physician employed by his employer’s insurer for six or seven weeks for an injury to his leg and shoulder and incapacity from that physical cause ceased on November 5, when he signed a settlement receipt. He was examined by the same physician in May of the next year and was told that he had grippe and was sent to another physician and later in that month his own physician made an examination of his sputum and examined him by X-ray and discovered that he was suffering from tuberculosis. Previous to that time he never had been informed that he had developed that disease. From time to time the insurer had urged him to go to work and he had tried to find work, but “ everything was slack.” He had filed no claim for compensation until June 22. Held, that
    (1) It could not be said that a finding by the Industrial Accident Board, that the employee had reasonable cause for the delayed filing of the claim, was unwarranted;
    (2) It could not be said that there was no evidence to support a finding that the insurer was not prejudiced by the delay in the filing of the claim.
    Certification to the Superior Court under the provisions of the workmen’s compensation act of a "decision of the Industrial Accident Board that the claimant, while in the employ of Turner Construction Company, had received personal injuries which had resulted in his being totally disabled, that, although he had not filed a claim as required by the act, he had reasonable cause for failing to do so and that the insurer was not prejudiced by such failure.
    In the Superior Court, the case was heard by Morton, J. Material facts shown by the record are described in the opinion. By order of the judge, a decree was entered in accordance with the decree of the Industrial Accident Board. The insurer appealed.
    
      G. Gleason, for the insurer.
    
      B. A. A. Compar one, for the employee.
   DeCourcy, J.

The employee received an injury, which arose out of and in the course of his employment, on September 15, 1921, when he was buried underneath a load of sand and gravel, while working in an excavation. He was taken to the office of Dr. Levek as an insurance patient, and for six or seven weeks was treated for an injury to his leg and shoulder. Incapacity for work arising from this particular injury ceased on November 5, 1921: and he signed a settlement receipt. Subsequently he became totally incapacitated for work because of pulmonary tuberculosis. The insurer now concedes that there was evidence to support the finding of the Industrial Accident Board that the accident of September 15 was the cause of lighting up of a latent tuberculosis, which now incapacitates the employee for work; and also admits that there was evidence to support the finding that the employer had knowledge of the injury as soon as practicable after the happening thereof. Ifc contends, however, that there was no evidence to support the findings that the employee had reasonable cause for failure to file his claim for compensation within six months after the injury, and that the insurer was not prejudiced by the delay.

1. Apparently Dr. Levek never suspected that the employee was suffering from tuberculosis. Even in May, 1922, when he last examined the employee, he told DeFelippo that he had grippe, and sent him to see another physician. It was not until later in May, when the employee consulted his own physician, Dr. Beely, and after a sputum examination and the taking of an X-ray, that he was told he was suffering from tuberculosis. Prior thereto he was never informed by any one that he had developed this disease. From time , to time he had been told by the insurer to go to work, and had tried to find some work but everything was slack.” Accordingly we cannot say there was no evidence to warrant the finding that he had reasonable cause for failing to file his claim for compensation before June 22, 1922.

2. The more doubtful question is, whether the insurer was prejudiced by the delay in filing said claim. As this is a question of fact for the determination of the Industrial Accident Board, their finding must stand if there was any evidence, to support it. Ordinarily it might be expected that an insurer would suffer prejudice by so long a delay. Nevertheless the evidence does not disclose, nor does the argument of counsel suggest, in what particular the insurer in fact was prejudiced by the delay in this case. The insurer’s own physician had the care and treatment of the employee until the latter part of October, 1921, and examined him as late as May, 1922. It does not appear that even if the insurer was earlier informed of the employee’s condition it would or could have afforded him any other treatment than that given him by his own physician, Dr. Beely. The employee himself could not well be held responsible for not realizing that he was suffering from this disease when a physician had failed to discover it, and had told him he was able to go to work. While on this meagre evidence the board would be warranted in finding that the employee had not sustained the burden of proving that the delay in filing his claim had not prejudiced the insurer, we cannot say there was no evidence to support the finding they made. It follows that the decree of the Superior Court must be affirmed, and it is

So ordered.  