Opinion
December 5, 1972.
James C. Gahan, Jr., for the insurer.
Philander S. Ratzkoff for the employee.
On this appeal from a decree of the Superior Court confirming an award of the Industrial Accident Board, we accept the following facts. In the early morning of August 15, 1968, the employee Peters was having lunch at a location in the plant not prohibited to him for the purpose, in the company of another employee, Johnson, who was an official of the union local. One Chapman, a former employee known to Johnson and Peters, came in, quarreled with Johnson about the local's refusal to give him a transfer card, and began to assault Johnson. Peters, who was not a party to the quarrel, tried but failed to pull Chapman away. Johnson shouted to Peters to run and have someone call the police. As Peters ran down a passageway, Chapman turned from Johnson and chased after Peters saying he would teach Peters to call the police, and, catching up with Peters, he beat and kicked him, breaking his leg at the hip and inflicting other injuries. We agree with the single member, the reviewing board, and the judge that Peters's injuries arose out of his employment, for "his employment brought him in contact with the risk that in fact caused his injuries." McLean's Case, 323 Mass. 35, 38. Baran's Case, 336 Mass. 342. Charon's Case, 321 Mass. 694. But cf. Burgess's Case, 331 Mass. 90. It is not a bar to Peters's recovery that the attack was wilful and by a nonemployee, see Dillon's Case, 324 Mass. 102, 106; McLean's Case, 323 Mass. 35, or that he might have avoided the peril of attack by declining to respond to his fellow employee. See Brightman's Case, 220 Mass. 17; limitation in Bator's Case, 338 Mass. 104, 106, of Roberts's Case, 284 Mass. 316; and Cirame's Case, 346 Mass. 783. Cf. Rollins v. Boston Maine R.R. 321 Mass. 586; Teachers' Retirement Bd. v. Contributory Retirement Appeal Bd. 346 Mass. 663. We reject the insurer's contention that the findings of the single member were insufficient to support his decision. The insurer is not entitled on the present record to dispute that Peters's disability is total and continuing, see Blanchard's Case, 335 Mass. 175, 178-179, and Goff's Case, 234 Mass. 116; moreover there is evidence that such disability in fact exists. A recommittal for proof on that issue through an impartial physician or otherwise would thus be unwarranted. Nor is there basis in the present record for a modification of the allowance made by the judge for the costs and expenses of appeal to the Superior Court. See Joyce's Case, 350 Mass. 77, 82. The costs and expenses of the present appeal will be fixed by the single justice in accordance with G.L.c. 152, § 11A.
Decree affirmed.