COMMONWEALTH vs. DONALD KELLEY (and three companion cases ).

JOSEPHINE WOZNIAK'S CASE.

4 Mass. App. Ct. 867

December 29, 1976

The insurer in this workmen's compensation case appealed from a judgment entered in the Superior Court awarding compensation to the claimant for disability

Page 868

arising out of injuries received on March 27, 1967, while the claimant was employed as a waitress. The sole issue before us is the insurer's claim that the judge erred in denying its request for a third recommittal to the reviewing board for purposes of further hearing so as to afford the insurer an opportunity to cross-examine the claimant relative to her allegedly prior inconsistent testimony, given at an earlier hearing in an unrelated claim for workmen's compensation benefits. The instant case had been recommitted by two different Superior Court judges. The appeal before us is from the judgment entered after the single member and reviewing board had acted pursuant to the second recommittal. Our standard of review is too clear to be repeated. See Hachadourian's Case, 340 Mass. 81 , 85 (1959), and cases cited; Trani's Case, ante, 857 (1976). There was no error. The single member's findings of December 17, 1974, indicate full compliance with the second recommittal order "to make a finding after consideration of the claimant's sworn testimony" in the other case. The reviewing board upon consideration of all the evidence affirmed and adopted the further findings and decision of the single member. There is nothing in the record to indicate that the insurer had not been given an opportunity to cross-examine the claimant on the subject in question. Accordingly, there was no abuse of discretion in refusing to recommit this matter for a third time.

Judgment affirmed.