Bongialatte v. H. Wales Lines Co.

• Decision Date: 07 July 1922
• Citation: Bongialatte v. H. Wales Lines Co., 97 Conn. 548, 117 A. 696 (Conn. 1922)
• Court: Connecticut Supreme Court
• Parties: BONGIALATTE v. H. WALES LINES CO. et al.

117 A. 696

97 Conn. 548

BONGIALATTE v. H. WALES LINES CO. et al.

Supreme Court of Errors of Connecticut.

July 7, 1922

Case Reserved from Superior Court, Hartford County; George E Hinman, Judge.

Proceeding for an award under the Workmen's Compensation Act by Dominick Bongialatte against the H. Wales Lines Company and others. From the award of the Compensation Commissioner, both parties appealed to the superior court, which reserved the case for the advice of the Supreme Court of Errors. Superior court advised to dismiss defendants' appeal and sustain plaintiff's appeal.

The following facts appear from the finding and award:

The plaintiff, while in the employ of the H. Wales Lines Company was injured on or about August 20, 1920, by a blow on the right shoulder joint, arising in the course of and out of his employment. This injury incapacitated the plaintiff to work from August 21, 1920, to May 31, 1921. The average weekly wage of the plaintiff was $45.05. Previous to August 20 1920, the plaintiff was suffering from a tuberculous and syphilitic condition, which had become localized in the right shoulder joint, resulting in a complete ankylosis. Said condition had become stable and would not have materially progressed without some new exciting cause, and it did not disable or incapacitate the claimant for his work as a laborer. The blow immediately " lighted up" the tuberculous and syphilitic condition previously existing and produced a condition incapacitating the plaintiff to work. If the plaintiff had been physically normal and in perfect health, the injury probably would not have incapacitated him for more than a short period of time.

The plaintiff incurred on account of the injury reasonable medical and hospital bills to the amount of $200 to April 1 1921. He was treated with reasonable promptness by competent physicians, and their treatment was satisfactory.

Notice of a claim for compensation was duly made by the plaintiff upon his employer within one year from the date of the injury. The employer had no notice or knowledge of the injury prior to April 27, 1921.

The Compensation Commissioner decreed that the defendants pay the plaintiff forthwith $730.28 compensation at the rate of $18 per week from August 21, 1920, to May 31, 1921, and that they be holden for all medical expenses made reasonably necessary by said injury after April 27, 1921, but not for those incurred by the plaintiff before April 27, 1921.

From this award both parties appeal to the superior court, which reserved the case for the advice of this court.

Burpee, J., dissenting.

Ralph O. Wells, of Hartford, for plaintiff.

Leonard J. Collins and William H. Nelson, both of Hartford, for defendants.

CURTIS, J.

The plaintiff appeals from the award because the Commissioner did not allow him to recover his expenditure of $200 for reasonable and proper medical care, which was made by him before April 27, 1921, and before his employer had notice or knowledge of his injury.

The reasonable construction of section 5347 limits the penalty upon an employee for failure to give immediate notice of an injury to his employer to such a reduction of the award of compensation as the Commissioner finds that the prejudice, if any, to the employer arising from such failure entitles him to. It does not deprive the employee of his right to have reasonable and competent medical aid at the expense of his employer.

If, in the absence of an immediate notice to the employer of the injury, he fails to provide medical aid, through ignorance of the injury or otherwise, and the employee employs medical aid, the employer is required to reimburse the employee for such expenditure if the same is reasonable as to amount and if the competency of the aid so employed is also reasonable so that the employer is not prejudiced thereby. If the employer is prejudiced by such an employment of medical aid by an employee who failed to give immediate notice of the injury to his employer, the Commissioner must reduce the award accordingly.

Under the finding the employee employed reasonable and competent medical aid and the employer was not prejudiced thereby. The plaintiff's appeal therefore must be sustained.

The defendants appeal from the award upon the ground that the Commissioner erred in allowing the plaintiff compensation for the entire incapacity caused by the injury. They claim that the Commissioner has found that the plaintiff had a prior disease, and that the injury in question aggravated it, and that this aggravation of a prior disease caused a part of the disability, and that for such part of the disability the plaintiff was not entitled to compensation.

This claim is based upon the portion of section 5341 as amended by chapter 142, section 1, of the Public Acts of 1919, reading as follows:

" If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in point of time and place. Any disease, which is caused by an injury arising out of and in the course of the employment, shall be deemed to be a natural consequence of such injury, but in any case of aggravation of a disease existing prior to such injury, compensation shall be allowed only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributed to the injury."

This claim presents for decision the question whether the Legislature by its amendment of section 5341 in 1919 intended to completely overthrow...