ALBERT COHEN'S CASE.

ALBERT COHEN'S CASE.

334 Mass. 137

February 9, 1956 - May 8, 1956

Suffolk County

Present: QUA, C.J., RONAN, SPALDING, COUNIHAN, & WHITTEMORE, JJ.

Under subsection (i) of Section 36 of the workmen's compensation act, G. L. (Ter. Ed.) c. 152, as appearing in St. 1952, c. 60, an employee who suffered losses of several bodily functions or sense other than hearing and sight was entitled to a single award of specific compensation not exceeding $2,000 for all such losses lumped together as a class and not to an award not exceeding $2,000 for each loss evaluated separately.

CERTIFICATION to the Superior Court of a decision by the Industrial Accident Board awarding compensation under the workmen's compensation act.

The claimant appealed from a decree entered by order of Goldberg, J., in accordance with the board's decision.

Philip D. Epstein, (Alphonse S. Bachorowski & Marvin Milton with him,) for the claimant.

George J. Ferguson, Jr., for the insurer.

RONAN, J. The employee fell down an elevator shaft on June 19, 1952, and sustained serious and multiple injuries for which he is being paid compensation under the workmen's compensation act. He brings the present proceeding to obtain specific compensation for the particular injuries he incurred at the time of his accident. He was awarded specific compensation under the different subsections of G. L. (Ter. Ed.) c. 152, Section 36, as appearing in St. 1949, c. 519, as amended by St. 1952, cc. 60, 84, as follows: subsections (n) and (q) (right leg, one hundred thirty weeks, $2,600); subsections (n) and (q) (left leg, seventeen and one half weeks, $350); subsections (k) and (q) (right arm, minor, one hundred thirty weeks, $2,6 0); subsections (j) and (q) (left arm, major, thirty-seven and one half weeks, $750); subsection

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(h) (bodily disfigurement, thirty-seven and one half weeks, $750); subsection (i) (loss of bodily functions or sense other than hearing and sight $2,000) or a total award of $9,050.

The employee contends that it was found that he had suffered a permanent and partial loss of ability to defecate and a major loss of the function of urination, a loss of sexual function, and also a permanent and partial loss of the use of his neck together with an impairment of his sense of balance, for which a single award totaling $2,000 was made, and that he was entitled to have these various ailments evaluated separately and single awards not exceeding $2,000 each made for each one. We do not agree. Subsection (i) of Section 36 of the workmen's compensation act as appearing in St. 1952, c. 60, in effect at the time of the accident, reads as follows: "(i) For loss of bodily functions or sense other than hearing and sight the number of weeks which, according to the determination of said board, reviewing board or single member, is a proper and equitable compensation, not to exceed one hundred weeks."

The structure of Section 36 plainly indicates the meaning of its subsections with relation to each other and also the meaning of each one considered alone. It expressly prohibits the application of subsection (i), the subsection now in question, to injuries involving loss of sight or of hearing, and the section permits the application of subsection (h) dealing with disfigurement "in addition to all other sums under this section wherever the same shall be applicable." Subsection (i) does not deal with a single ailment but groups together all ailments in the nature of loss of functions or sense in one class and fixes a maximum amount to be awarded for the entire class irrespective of the number or nature of ailments of the kind described. There was no error in lumping the loss of functions and of sense and making a single maximum award of damages under subsection (i) of Section 36. Robinson's Case, 320 Mass. 698 . Boynton's Case, 328 Mass. 145 . Morley's Case, 328 Mass. 148 .

The decree is affirmed.

So ordered.