Furlani v. Avery

• Decision Date: 17 November 1930
• Court: Connecticut Supreme Court
• Parties: FURLANI v. AVERY et al.

152 A. 158

112 Conn. 333

FURLANI v. AVERY et al.

Supreme Court of Errors of Connecticut.

November 17, 1930

Appeal from Superior Court, Hartford County; Carl Foster, Judge.

Proceeding under the Workmen's Compensation Law by Peter Furlani claimant, against John Avery, employer, and another. From an adverse finding and award of the compensation commissioner on claimant's application for modification of the award claimant appealed to the superior court, which dismissed the appeal and confirmed the award.

Error and superior court directed to sustain appeal and remand case to commissioner for further proceedings according to law.

S Polk Waskowitz and Edward S. Pomeranz, both of Hartford, for appellant.

De Lancey S. Pelgrift, of Hartford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, J.

HAINES, J.

The rights of the parties were fixed by a voluntary agreement filed with the compensation commissioner and approved by him March 3, 1926, by the terms of which compensation was to be paid to the plaintiff during total incapacity on account of a " severe pain in back from lifting," at the rate of $15 per week, and this was paid to March 12, 1927. In the meantime an informal hearing was held by the commissioner November 2, 1926, because of the complaints of the plaintiff, and the defendants then agreed to further hospitalization in an endeavor to discover what was disabling him. On March 21, 1927, another hearing was held, and the commissioner found that the plaintiff had been attended by orthopedic surgeons; Dr. Cook in May, 1926, using X-ray picture, finding nothing wrong with the back and no trace of injury, while Dr. Swett was of the opinion that there was perhaps some arthritis in the back. At the request of Dr. Cook, further X-rays were taken, but they were again negative. After hearing all the evidence, the commissioner found the plaintiff was no longer disabled, and should go to work, and that he had been paid all that he was entitled to receive under the agreement. On May 15, 1929, the commissioner for the third district, acting in the first, held another hearing on the plaintiff's claim that his incapacity had increased, but found the allegation not proven, and dismissed the application. The final hearing was held by the commissioner of the second district, acting in the first, on November 8th, 1929, upon a further petition for modification of the award of March 1, 1927, who held that changed conditions of fact, justifying him in reopening the award, had not arisen. On April 23, 1930, the commissioner, in ruling on a motion to correct the decision, stated that the condition of the plaintiff was not shown at the hearing of November 8, 1929, to be causally connected with the original injury. The matter then went by appeal to the superior court, Foster, J., who held that the commissioner's decision rested entirely upon a question of fact found upon conflicting evidence, and that there was evidence which reasonably supported the finding a correction of which was denied to the plaintiff. Judgment was entered dismissing the appeal, and the plaintiff appeals to this court.

The ultimate question to which all the reasons of appeal now before us are directed is whether the incapacity of the plaintiff had increased, or whether changed conditions of fact had arisen since the award of March 21, 1927, which called for a reopening and modification of that award.

Touching the claims for correction of the findings of fact in that award, the plaintiff and the defendant both procured the certification of certain medical testimony given at the hearing. We proceed upon the legitimate assumption that all the evidence upon the question was thus before the superior court and is now before us on this appeal.

A modification of the award was sought under the terms of General Statutes (Rev. 1918) § 5355, which provided that all awards or voluntary agreements under the Compensation Act shall be subject to modification whenever it shall appear to the commissioner, after due notice and hearing had at the request of either party, that the incapacity of the injured employee has increased, decreased, or ceased, or that changed conditions of fact have arisen which necessitates such modification in order to carry out the spirit of the act, and for that purpose the commissioner retains jurisdiction over awards and agreements during the whole compensation period.

We have said of the procedure under this statute that whether the particular facts brought to the commissioner's attention justify him in exercising his power of modification must rest largely in his discretion. Morisi v. Ansonia Mfg. Co., 108 Conn. 31, 36, 37, 142 A. 393. But this discretion must be a reasonable: that is, a legal discretion. McKone v. Schott, 82 Conn. 70, 71, 72 A. 570; Loomis v. Perkins, 70 Conn. 444, 446, 39 A. 797. If the trial court was correct that the decision of the commissioner was reached upon conflicting evidence, and that the plaintiff was not entitled to a correction of the finding, then there was no error, otherwise the judgment of the trial court was erroneous. If the plaintiff's claims as to the finding are valid, it could not be held that the discretion of the commissioner was reasonably...