Clini v. New Haven Brewing Co.

• Decision Date: 05 March 1935
• Citation: 119 Conn. 556,177 A. 745
• Court: Connecticut Supreme Court
• Parties: CLINI v. NEW HAVEN BREWING CO. et al.

177 A. 745

119 Conn. 556

CLINI v. NEW HAVEN BREWING CO. et al.

Supreme Court of Errors of Connecticut.

March 5, 1935

Case Reserved from Superior Court, New Haven County; Newell Jennings, Judge.

Proceedings under the Workmen's Compensation Act by Louis Clini claimant, opposed by the New Haven Brewing Company, employer and another. A pro forma finding and award of the compensation commissioner dismissing the claim was reserved to the superior court, and by that court the case was reserved to the Supreme Court of Errors.

Superior court advised to return case to commissioner.

George G. Di Cenzo, of New Haven, for plaintiff.

M. J Blumenfeld, of Hartford, for defendants.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and JENNINGS JJ.

MALTBIE, Chief Justice.

This case comes before us upon reservation from the superior court after the commissioner had made a pro forma award dismissing the claim of the plaintiff. The parties filed with the commissioner an agreed statement in which the following facts appear: On August 28, 1933, the plaintiff, while engaged in his employment as a cement mason by the defendant employer, was moving a plank when his foot slipped. He felt a pain in the groin and fell. He was in great pain and unable to rise, until he was helped by others. A doctor, immediately called by his boss, examined the plaintiff and stated that he had a rupture; he advised that he should go home, but that he might return the next day, when, he could do easy work. He did go home and came back the next morning, when he was given the job of supervising other employees. This continued for four or five weeks, during which time the plaintiff was more or less an overseer, not doing any of his usual or customary work because of inability to do so, but being paid his regular wages. The plaintiff visited the doctor several times during this period and was advised that an operation was necessary. The plaintiff did not want an operation then, but wished to defer it until his wife had given birth to a child which was expected. The doctor suggested that the plaintiff buy a truss. This he did on October 14, 1933, and thereafter performed the same kind of work he had done before August 28, 1933, sometimes working overtime. He can do this work when he wears the truss, but without it is unable to do so. On December 1, 1933, the employer suspended, operations, and all its employees, including the plaintiff, were discharged. As long as he was in the defendant's employment, he continued to receive the same wages paid him before August 28th. By an addition to the finding, it appears that the parties also agreed that there was no pre-existing hernia. The commissioner dismissed the claim upon the ground that inability to work, one of the conditions of an award of compensation based upon a hernia, did not follow the injury within one week.

Previous to 1927 the Workmen's Compensation Act contained no special provision as regards hernia. In that year it was amended to provide as follows: " 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." Pub. Acts 1927, c. 307, § 4. In O'Brien v. Wise & Upeon Co., Inc., 108 Conn. 309, 143 A. 155, decided in 1928, we considered this statute with particular reference to the intent of the Legislature in using the word " immediately," and, by a divided court, held that, in order to comply with the law, inability to work must follow an injury presently, without any substantial interval of time, and hence that, where the employee continued his work for a week after the claimed injury, he was not entitled to compensation. The next Legislature amended this provision of the law into its present form: " In order to be entitled to compensation for a hernia, the employee shall prove that the hernia resulted from an accidental injury accompanied by evidences of pain, that inability to work followed such accident within one week, 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." Pub. Acts 1929, c. 242, § 2; Gen. St. 1930, § 5237. In the present case the plaintiff fulfilled the requirements of the statute unless, by the phrase " inability to work," the Legislature intended an inability to do any work, not an inability to perform his customary work, where the employee could continue to do a different kind of work at wages as large as those he had previously earned.

In O'Brien v. Wise & Upson Co., Inc., supra, page 316 of 108 Conn., 143 A. 155, we stated the reason underlying the making of a special provision as to hernia, and it is not necessary to repeat what we there said. The purpose, in brief, 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. This is apparent from the fact that, when in 1929 the statute was changed so that incapacity need not follow immediately, a requirement that the injury be accompanied by evidence of pain was added. The question resolves itself into this: How stringent requirements did the Legislature intend to establish to accomplish the purpose it had in mind?

While the phrase " inability to...