Franko v. William Schollhorn Co.

• Decision Date: 23 July 1918
• Citation: 93 Conn. 13,104 A. 485
• Court: Connecticut Supreme Court
• Parties: FRANKO v. WILLIAM SCHOLLHORN CO. et al.

104 A. 485

93 Conn. 13

FRANKO v. WILLIAM SCHOLLHORN CO. et al.

Supreme Court of Errors of Connecticut.

July 23, 1918

Case Reserved from Superior Court, New Haven County; William S Case, Judge.

Proceedings under the Workmen's Compensation Act by Mariano Franko against the William Schollhorn Company and another. Appeal by defendants from an award by the compensation commissioner of the Third district in favor of plaintiff, taken to the superior court for New Haven County and reserved for the advice of the Supreme Court of Errors upon all questions of law arising upon the record. Judgment advised dismissing appeal.

The claimant and respondent employer were subject to the provisions of part B, c. 138, of the Public Acts of 1913, as amended by chapter 288 of the Public Acts of 1915. The claimant on February 7, 1917, while in the employment of the respondent, suffered a laceration of the first finger of the right hand, which injury arose out of and in the course of his employment. The average weekly wage of the claimant computed in accordance with the terms of the act, was $11. On March 13, 1917, there was approved a voluntary agreement to pay claimant on account of the said injury $5.50 per week beginning February 18th, and extending throughout the period of total incapacity. Compensation on account of said injury has been paid at the rate provided in this agreement for about 25 1/3 weeks. Up to May 21st, the claimant was totally incapacitated as a result of this injury, and on said day on account of this injury it became necessary to amputate two phalanges of this finger. The claimant claimed: First, that he was totally incapacitated from February 7th until May 21st, and that during that time he was entitled to compensation under section 11 as amended, as " compensation for total incapacity." Second, that on May 21st two phalanges of the index finger were removed, and that from that date he was entitled to 25 1/3 weeks additional compensation under section 12 as amended, as " compensation for partial incapacity." The respondent claimed that the compensation that could be awarded was that for 25 1/3 weeks, on the ground that the compensation for the loss of the phalanges of the finger was exclusive of all other compensation. The commissioner sustained claimant's claim 2 and also 1 as to the period from February 18th, and overruled respondent's claim. The commissioner awarded the claimant as compensation on account of said injury $5.50 a week from February 18 to May 21, 1917 for total incapacity, and at a like rate for the loss of the two phalanges of the index finger beginning May 21st and extending for a period of 25 1/3 weeks after making due allowance for payments heretofore made.

Eugene F. Farley and H. Frederick Day, both of New Haven, for plaintiff.

Philip Pond, of New Haven, for defendants.

WHEELER, J.

The question for decision is one of statutory construction. Compensation acts of other states differ as a rule from our act in those provisions which affect the question at issue. Comparison of these with those of our act will not aid us in the interpretation of our act, and the decisions under these acts will be of little help. The acts of some states contain no similar provisions; the acts of other states, such as Massachusetts and New Jersey, are so specific as to determine the point, while in many other states the question has not been the subject of decision.

The commissioner in his memorandum gives an interesting résumé of the decisions of the courts and the rulings of the commissioners in other jurisdictions. From these it appears that, in a majority of the jurisdictions where this question can arise, their compensation Acts award compensation in cases such as this for the total incapacity suffered as well as for the loss of a member. New York and Michigan appear to hold the compensation awarded under their act is for disability, not for loss or impairment of earning power. Our own act, as we shall point out, is based upon a different theory. A review of these acts, decisions, and rulings would furnish little aid in solving our problem, nor is it necessary. As we read our act, sections 11 and 12, which alone concern this question, are reasonably clear.

Our act in its original form and in its amended forms of 1915 and 1917 (Pub. Acts 1917C, 368) provides compensation for both total and partial incapacity resulting from injuries which do not prove fatal. Section 11 relates to total incapacity, and provides that the loss of sight, the loss or paralysis of certain physical members, and incurable imbecility or insanity, resulting from the accident, shall be " considered as causing total incapacity." And these and all other injuries resulting in total incapacity to work shall be paid weekly during such incapacity compensation equal to half of his average weekly earnings at the time of the injury with a maximum and minimum limitation of the period of compensation. The obvious theory of this section is that the compensation is dependent upon the loss or impairment of earning power and is to be borne by the employer and employé . The total incapacity may be permanent or temporary, but while it lasts the suffering employé is entitled to compensation for the prescribed period and upon the named scale.

Section 12 provides that, in cases of injury resulting in partial...