Arduini v. General Ice Cream Co.

• Decision Date: 12 May 1937
• Court: Connecticut Supreme Court
• Parties: ARDUINI v. GENERAL ICE CREAM CO. et al.

192 A. 314

123 Conn. 43

ARDUINI v. GENERAL ICE CREAM CO. et al.

Supreme Court of Errors of Connecticut.

May 12, 1937

Appeal from Superior Court, Fairfield County; Carl Foster, Judge.

Proceeding under the Workmen's Compensation Law by Dominick Arduini employee, against the General Ice Cream Company, employer and another. From a judgment setting aside an award of the compensation commissioner in favor of the employee, the employee appeals.

No error.

Harry B. Dinerstein, of Bridgeport, for appellant.

Daniel L. O'Neill and John E. McNerney, both of New Haven, for appellees.

Argued before MALTBIE. C.J., and HINMAN, BANKS, AVERY, and BROWN JJ.

HINMAN, Judge.

The finding of the compensation commissioner, with such corrections as the trial court justifiably held warranted, discloses the following facts material to the present inquiry: On the morning of Saturday, August 8, 1936, the plaintiff was working in the freezing room of the named defendant. While he and a fellow-employee were lifting a can of ice cream mix, he felt a " snap" in the left side and said to his companion, " Gee, I felt a snap," but he felt no pain, it did not hurt, and he forgot about it and continued to work the remainder of the day. Early in the evening, while at home, he discovered a lump in his left groin which he reported to his foreman on Monday morning and was sent to the company's doctor for examination, which disclosed a " recurrent direct inguinal hernia with no tenderness or pain on the edges of the ring through which the protrusion came." His medical history revealed that in May, 1932, he was operated on for hernia on the left side and that on May 14, 1936, a pre-employment physical examination showed that the rings on both sides were enlarged. The plaintiff returned to work on Tuesday and worked all day, but has not returned since that date.

The compensation commissioner found that the " snap" which the plaintiff felt " is equivalent to feeling pain, when related to hernia," and held that " he felt pain immediately following" an injury arising out of and in the course of his employment, and awarded compensation. On the appeal the superior court held that this finding was unwarranted, that, instead, it should be found that the plaintiff felt no pain and that, under the applicable statutory provision (in section 5237 of the General Statutes), he was not entitled to compensation. The correctness of these conclusions is the point decisive of the present appeal.

The history of the special provision regarding hernia here involved, in our Workmen's Compensation Law, has been reviewed, in O'Brien v. Wise & Upson Co., Inc. (1928) 108 Conn. 309, 143 A. 155, and summarized in Clini v. New Haven Brewing Co., 119 Conn. 556, 558, 177 A. 745. The provision, first made in 1927 (Public Acts, chap. 307, § 4), was that " In order to be entitled to compensation for a hernia, the employee shall prove that the hernia resulted from an accidental injury, that inability to work immediately followed such accident, that there was not a pre-existing hernia at or prior to the accident for which compensation is claimed and that, within two weeks thereafter, the facts of such accident were communicated to the employer." The purpose of this provision, we held, was " to afford a means of assurance that, where incapacity was claimed to be due to hernia, the hernia really resulted from an injury or strain occurring in the course of the employment, and not from some strain or effort which occurred outside the scope of the employment. The special requirements made with reference to hernia are in their nature facts tending to evidence the actual connection between the incapacity and the claimed injury." Clini v. New Haven Brewing Co., supra, 119 Conn. 556, at page 559, 177 A. 745, 746. Proof is required that the usual form of hernia-the hernia of effort-was caused by a strain or other accident arising out of and in the course of the employment. O'Brien v. Wise & Upson Co., Inc., supra, 108 Conn. 309, at page 317, 143 A. 155, 156.

In the case last cited we held, by a divided court, that in order to satisfy the requirement of proof " that inability to work immediately followed [the] accident" such inability must follow an injury " presently or without any substantial interval of time," so that when, as in that case, the employee continued his work for a week after the claimed injury, he was not entitled to compensation. Apparently as a result of the decision in that case and the considerations advanced in the dissenting opinion therein the General Assembly at its next session (1929) amended this provision by substituting for the requirement of proof " that inability to work immediately followed such accident" one for proof that the hernia resulted from an accidental injury " accompanied by evidences of pain [and] that inability to work followed such accident within one week." Pub. Acts, 1929, chap. 242, § 2. The same provision continues in section 5237 of the General Statutes. The effect of this change was to liberalize the requirement as to inability to work so that the injury may be compensable although such inability may not " immediately" follow the accident, if it ensues within one week, but to impose, as an additional assurance that...