Esposito v. Marlin-Rockwell Corp.

• Decision Date: 01 June 1921
• Citation: 96 Conn. 414,114 A. 92
• Court: Connecticut Supreme Court
• Parties: ESPOSITO v. MARLIN-ROCKWELL CORPORATION et al.

114 A. 92

96 Conn. 414

ESPOSITO v. MARLIN-ROCKWELL CORPORATION et al.

Supreme Court of Errors of Connecticut.

June 1, 1921

Case Reserved from Superior Court, New Haven County; James H Webb, Judge.

Superior court advised to enter judgment sustaining the appeal from the commissioner, vacating his award, and directing him to make an award in favor of the claimant for such amount as the facts found may warrant.

The finding shows that at all times between the 3d day of March 1919, and the 6th day of May, 1919, the plaintiff was in the employ of the Marlin-Rockwell Corporation, and upon a day between those dates received an injury arising out of and in the course of such employment, which was occasioned by a sudden strain while lifting a heavy table and which gave rise to a properitoneal hernia. On the occurrence of the strain the plaintiff at once reported the same to the medical representative of his employer, who examined him and advised him.

The plaintiff continued to work, but in general upon lighter tasks until January 10, 1920, when he was obliged to cease work because of the hernia. The plaintiff at no time gave any written notice of his claim for compensation, nor did he at any time request a hearing of his claim. No voluntary agreement has at any time been submitted.

On April 17, 1920, the plaintiff's claim was assigned for a hearing on May 3, 1920, and upon due notice hearings were held on May 3, 1920, and by continuance on May 17 and 18 1920. No assignment was made earlier than April 17, 1920. No prejudice in fact resulted to the employer because of the lapse of time between the strain and the assignment of the hearing.

Arthur B. O'Keefe and Anthony P. Adinolfi, both of New Haven, for plaintiff.

Philip Pond and William H. Hitchings, both of New Haven, for defendants.

CURTIS, J.

The plaintiff suffered the strain on some undetermined day between March 3, 1919, and May 6, 1919. On the day of the strain he notified his employer of his injury. No question therefore arises under General Statutes, § 5347, which provides that-

" Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing him, of such injury."

The plaintiff was able to continue his employment until January 10, 1920, when he was obliged to cease work for a long period because of the hernia caused by the strain received between March 3, 1919, and May 6, 1919. No written notice of a claim for compensation was ever given, but an assignment for a hearing to be held on May 3, 1920, was made by the commissioner on April 17, 1920.

The essential question presented in this case is whether the provisions of General Statutes, § 5360, bar a recovery under the facts stated because no written notice of a claim for compensation was given within one year from the date of the strain.

Section 5360 provides in part as follows:

" No proceedings for compensation *** shall be maintained unless a written notice of claim *** is made within one year from the date of the injury. *** But where there has been *** an assignment for hearing within one year from the date of the injury, *** no want of such notice of claim shall be a bar to the maintenance of proceedings."

If the term " date of injury" in section 5360 means the date of the accident or occurrence which injured the employee, then, since the plaintiff was unable to prove that the accident occurred after April 17, 1919, and no written notice of claim was made, the plaintiff is barred a recovery by the provisions of section 5360.

The plaintiff claims that the term injury in section 5360 does not mean the date of the accident or occurrence which caused the injury, but the date when the state of facts arose which first entitled the plaintiff to compensation; in other words, he claims that " date of injury" in section 5360 means date of compensable injury.

Section 5348 determines the date of a compensable injury. This section provides as follows:

" No compensation shall be payable for total or partial incapacity under the provisions of this chapter on account of any injury which does not incapacitate the injured employee for a period of more than seven days from earning full wages at his customary employment; but if incapacity extends beyond a period of seven days compensation shall begin at the expiration of the first seven days of total or partial incapacity."

The date of compensable injury therefore is when the...