Cashman v. Mcternan Sch. Inc.

• Decision Date: 01 December 1943
• Citation: 34 A.2d 874,130 Conn. 401
• Court: Connecticut Supreme Court
• Parties: CASHMAN v. McTERNAN SCHOOL, Inc., et al.

130 Conn. 401

34 A.2d 874

CASHMAN

v.McTERNAN SCHOOL, Inc., et al.

Supreme Court of Errors of Connecticut.

Dec. 1, 1943.

Appeal from Superior Court, New Haven County; Comley, Judge.

Proceeding under the Workmen's Compensation Act by George Cashman, claimant, opposed by McTernan School, Inc., employer, and another. The defendants appealed from a finding and award of the Compensation Commissioner for the Fifth District in favor of the plaintiff, and the case was reserved by the Superior Court for the advice of the Supreme Court of Errors.

Affirmance of award directed.

JENNINGS, J., dissenting.

J. Warren Upson and Lawrence L. Lewis, both of Waterbury, for plaintiff.

Walter E. Monagan, of Waterbury, for defendants.

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

BROWN, Judge.

The plaintiff was employed as an instructor by the McTernan School, Inc., within the Workmen's Compensation Act, at the average wage of $28 per week. On October 22, 1940, while kicking a soccer ball, he sustained an injury to his left hip. This injury arose out of and in the course of his employment. About August, 1938, the plaintiff while wrestling had suffered a dislocation of this hip which was in no way connected with any employment. The dislocation was completely reduced and thereafter gave the plaintiff no trouble, he being able to perform all of the activities of his employment up to the accident of October 22, 1940. The 1938 injury resulted in an aseptic necrosis of the femoral head of the plaintiff's hip. This is a progressive disease. While the plaintiff had suffered from the results of this first injury, those results were dormant and had caused him no disability or loss of use of the injured member. No waiver on the condition of his hip was asked or taken by the school. The act of kicking the soccer ball on October 22, 1940, was the immediate occasion of the injury to the plaintiff and the disability from which he suffers. Subsequent to this injury his condition became aggravated so that he had to curtail his activites and wear a walking caliper on this leg. He lost no time or wages from his employment, however, so that he is entitled only to the specific indemnity provided for a partial loss of use of his leg. General Statutes, Cum.Supp.1939, § 1328e. As a result of the second injury the plaintiff sustained an aggravation of a pre-existing disease, not occupational, originally caused by the first injury. As of February 2, 1943, the date of the commissioner's award, the plaintiff had a 60 per cent. loss of function and disability of the left leg, 25 per cent. of which was caused by the second injury and 75 per cent. by the progressive effect of the aseptic necrosis resulting from the first injury. This loss of use of the leg will become progressively greater. Upon these undisputed facts of his amended finding, the commissioner, ‘subject to all proper modification in the event that the claimant's liability increases,’ awarded the plaintiff compensation at the rate of $14 per week for a period of 124.8 weeks, representing the amount due for 60 per cent. loss of use of the left leg. Upon the defendants' appeal from this award the Superior Court reserved the case for the opinion of this court.

The vital question for determination is the meaning of the words ‘pre-existing disease’ as used in § 5223 of the General Statutes. The statute reads: ‘In the case of aggravation of a pre-existing disease, compensation shall be allowed only for such proportion of the disability or death due to the aggravation of such pre-existing disease as may be reasonably attributed to the injury upon which the claim is based.’ To state the issue more specifically as applied to this case, is the meaning of ‘pre-existing disease’ restricted to ‘occupational disease’ as defined earlier in the statute, or does it include the nonoccupational disease of aseptic necrosis from which the plaintiff was suffering at the time of his injury? The plaintiff claims that the former is the correct interpretation, justifying the commissioner's award. The defendant claims that the commissioner erred in failing to adopt the latter and so to exclude from the award compensation for that 75 per cent. of the plaintiff's disability which was due to the necrosis.

The provision in question in its original form first became a part of the Workmen's Compensation Act by an amendment contained in Public Acts, 1919, Chap. 142, § 1. Prior to that enactment compensation under the act depended not upon the condition of health of the employee prior to his injury but upon the hazards of the employment without regard to this condition. Hartz v. Hartford Faience Co., 90 Conn. 539, 543, 97 A. 1020; Saddlemire v. American Bridge Co., 94 Conn. 618, 629, 110 A. 63; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 354, 111 A. 193; and see Mages v. Alfred Brown, Inc., 123 Conn. 188, 192, 193 A. 780. The 1919 amendment by virtue of a further provision contained in it was construed as providing compensation for any disease arising in the course of and out of the employment. Dupre v. Atlantic Refining Co., 98 Conn. 646, 120 A. 288; Kovaliski v. Collins Co., 102 Conn. 6, 128 A. 288. Following subsequent re-enactments (Public Acts 1921, Chap. 306, §§ 1, 11, and Public Acts 1927, Chap. 307, § 1, 7), both provisions are now a part of § 5223 of the General Statutes.

In urging that the words ‘pre-existing disease’ as used in the statute should be construed to include only occupational disease, the plaintiff relies primarily upon the decision by this court in the case of Bongialatte v. H. Wales Lines Co., 97 Conn. 548, 117 A. 696, 698, where in construing the 1919 amendment it was held, one judge dissenting, that the words ‘aggravation of a disease existing prior to such injury’ applied only to the aggravation of an occupational disease. In that case the plaintiff was injured by a blow on the right shoulder arising out of and in the course of his employment. Previous to the injury he was suffering from a tuberculous and syphilitic condition which had become localized in the right shoulder joint resulting in a complete ankylosis. This condition had become stable and would not have materially progressed without some new exciting cause, and it did not disable or incapacitate the plaintiff for his work as a laborer. The blow immediately lighted up the condition previously existing and produced one incapacitating the plaintiff from work. Had the plaintiff been physically normal and in perfect health, the injury probably would not have incapacitated him for more than a short period of time. The court decided that since the plaintiff's pre-existing disease was not occupational he was entitled to compensation for the entire incapacity. In the later case of Romaniec v. Collins Co., 107 Conn. 63, 139 A. 503, where the plaintiff contracted an occupational disease during the original period of his employment by the defendant and, after working elsewhere, upon his return this disease was aggravated by his reemployment by the defendant, the provision was held inapplicable. The plaintiff contends that these decisions establish that the provision applies only to occupational disease which had its origin in employment by an employer other than the one in whose employ the aggravating injury occurred.

Whether this contention is correct requires consideration of a more recent decision of this court. In Henry v. Keegan, 121 Conn. 71, 183 A. 14, the plaintiff's decedent was suffering from leukemia, a nonoccupational disease which would ultimately have proved fatal, but by reason of injuries arising out of and in the course of his employment by the defendant his death occurred earlier than it otherwise would. We held the provision applicable, saying (121 Conn. at page 75, 183 A. at page 15): ‘Such a situation calls for apportionment of compensation according to the relative effect, upon the length of the decedent's life, of the injuries and the disease. * * * The statute concerning apportionment was obviously intended to meet a situation where an employee having a pre-existing disease suffers a compensable injury and the two operating together result in incapacity which, were it not for the pre-existing disease, would not be so extensive as it in fact becomes or in...