Connery's Case , 335 Mass. 160 ( 1956 )

Counihan, J.

This case comes here upon an appeal from an interlocutory decree of a judge of the Superior Court denying a motion of the employee to recommit the case to the Industrial Accident Board. No final decree was entered by the judge in conformity with or disagreeing with the decision of the reviewing board.

The case is not properly before us because no appeal lies from an interlocutory decree. “The statute requires a final decree from which the party aggrieved can appeal to this court.” Keohane’s Case, 232 Mass. 487, 489. Pierce’s Case, 325 Mass. 649, 653. Batchon’s Case, 333 Mass. 605.

Inasmuch as this case may come before us again we deem it appropriate to refer to certain matters which have been brought to our attention by counsel for the employee.

At the time of the argument before us counsel for the employee presented a motion to “remand the record and direct the Superior Court to recommit it to the Industrial Accident Board for the inclusion of . . . [the original notice of hearing] in accordance with the facts set forth in the accompanying affidavit.” This notice reads:

Notice of Date of Hbabing.

Patrick J. Connery Employee

Perkins Machine & Gear Company Employer

Aetna Casualty & Surety Company Insurer

The hearing in the above named case will be held on Friday, January 8, 1954 at 10:00 a.m., at 32 Congress Street, Springfield, Massachusetts where the evidence of the employee will be taken.

The remainder of the testimony of the above named case will be held at a time and place to be later designated by the Board Member. [Emphasis supplied.]

The parties are requested to prepare themselves accordingly.

Industrial Accident Board. Edward P. Doyle, Secretary.

The affidavit further sets forth that this notice was brought to the attention of the reviewing board and the judge in support of a motion before each to recommit based on the ground that the record was incomplete, and that each tribunal denied the motion.

Counsel for the employee argues that he fully expected to be notified of a further hearing before the single member when he would be afforded an opportunity to introduce evidence from the plant nurse, a Dr. Geran, presumably the plant physician, and a Dr. Curtis to prove a causal connection between the original injury the employee sustained and the condition of malignancy from which he later suffered. He asserts that for this reason the record is incomplete in that he was denied an opportunity to present his full case.

The original notice of hearing does not appear in the record nor does it appear what occurred at the hearings before the board of review and the judge on the respective motions to recommit. We believe that if we are later required to consider this case upon the merits there ought to be findings in the record as to the original notice of hearing and as to whether the employee intended to present further evidence before the single member to prove a causal connection between the original injury the employee sustained and the condition of malignancy from which he claimed he later suffered.

Appeal dismissed.