Civitello v. Conn. Sav. Bank

• Decision Date: 06 March 1942
• Citation: 128 Conn. 621,25 A.2d 47
• Court: Connecticut Supreme Court
• Parties: CIVITELLO v. CONNECTICUT SAV. BANK et al.

25 A.2d 47

128 Conn. 621

CIVITELLO

v. CONNECTICUT SAV. BANK et al.

Supreme Court of Errors of Connecticut.

March 6, 1942.

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

Proceeding under Workmen's Compensation Law by Peter Civitello, claimant, opposed by Connecticut Savings Bank, employer.

From a finding and award of the compensation commissioner for the third district dismissing claim for further compensation, and from a subsequent finding and award of that commissioner denying claimant's motion for a new hearing and dismissing his claim for compensation, claimant took appeals to the Superior Court. From judgments dismissing the appeals and affirming the awards, the claimant appeals.

No error on either appeal.

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

David S. Korn, of New Haven, for appellant.

Francis J. Moran and John E. McNerney, both of New Haven, for appellees.

BROWN, Judge.

The first appeal as taken to the Superior Court was from a finding and award of the workmen's compensation commissioner for the third district dated November 23 1939, refusing to open or modify a voluntary agreement approved April 25, 1938, which awarded the plaintiff compensation for an injury to his ninth rib on the right side sustained on March 16, 1938, in a fall down a flight of stairs while engaged in wrecking a building of the named defendant, his employer. Under the voluntary agreement the plaintiff was paid compensation until May 9, 1938, on which date he returned to work, and he continued in the employ of the defendant Bank until November 5, 1938, when he voluntarily left. During the ensuing two weeks the plaintiff supervised and took part in building a porch on his home and a week or two later requested employment of the Bank, but has never been re-employed by it. The plaintiff is sixty-two years old and until his injury had worked for the Bank as a general carpenter doing repair work and occasionally doing house wrecking. Following his return to work on May 9, 1938, the plaintiff did no more house wrecking and was favored by the Bank by being given light work whenever it was possible, but in general he did the same type and amount of work as he had done previous to his injury. The plaintiff made certain complaints which he attributed to the fractured rib, and claimed that because of it he was incapacitated from working. The plaintiff may have pain or discomfort at the site of this fracture under certain conditions, but is not in need of any further medical attention. These were facts found by the commissioner and are not subject to correction. He further found that the plaintiff, since November 5, 1938, has not been either partially or totally incapacitated from working because of the accident of March 16, 1938, nor by reason of pain or discomfort at the site of the fracture. The Superior Court dismissed the appeal and affirmed the award. The question determinative of the appeal to this court is whether the plaintiff is entitled to a correction of the finding that since November 5, 1938, he had been neither totally nor partially incapacitated by the original injury.

As is indicated by the facts which the commissioner has properly found, the plaintiff's work had been that of a general carpenter doing repair work for the Bank which occasionally involved house wrecking. The undisputed testimony of the Bank's superintendent of maintenance and of its foreman of carpenters shows that this heavy carpenter's work of house wrecking was a material part of the work done by its general carpenters on repair work such as the plaintiff. It is reasonably to be inferred from the finding and is undisputed that prior to his injury the plaintiff was capable of doing in the course of his employment this kind of heavy carpenter's work. In fact it is found that he was so engaged when the accident occurred. If his injury rendered him unable to continue doing this work this inability on his part as such a carpenter would amount to partial incapacity. The question is, does the evidence reasonably support the finding of the commissioner that the plaintiff, since November 5, 1938, has not been partially incapacitated by reason of the accident on March 16, 1938?

The testimony of witnesses for both the plaintiff and defendants is that house wrecking constitutes heavy carpenter's work, and this appears to be undisputed. There is a conflict of evidence as to whether by reason of his injury the plaintiff was no longer able to do this sort of work. He testified that this was the fact and his witness Dr. FitzSimons stated in substance that in his opinion this was so. Doctors Brody, Sullivan and Cook, as expert witnesses for the defendants, testified as their opinion that this was not so, and that the plaintiff was able to continue doing the regular work which he had been doing before his injury. While the effect of their testimony was modified somewhat by cross-examination, in view of the plaintiff's age, the work which he did perform subsequent to his injury, and all of the other pertinent facts in evidence, we cannot...