Kalinick v. Collins Co.

• Decision Date: 20 December 1932
• Court: Connecticut Supreme Court
• Parties: KALINICK v. COLLINS CO. et al.

163 A. 460

116 Conn. 1

KALINICK v. COLLINS CO. et al.

Supreme Court of Errors of Connecticut.

December 20, 1932

Appeal from Superior Court, Hartford County; John A. Corneil, Judge.

Ralph O. Wells and William S. Locke, both of Hartford, for appellant.

William W. Fisher, of Hartford (Thomas Hewes, of Hartford, on the brief), for appellees.

HINMAN, J.

The plaintiff was employed by the Collins Company from May, 1915 until January 1923, as a wet grinder, and thereafter did other work for the same employer until January 6, 1931, when he became disabled as the result of pneumoconiosis constructed while employed as a wet grinder. On March 20 1931, the compensation commissioner awarded the plaintiff weekly compensation of one-half of his average weekly wages during the twenty-six weeks next preceding January, 1923. On December 8, 1931 the case of Rousu v. Collins Co., 111 Conn. 24, 157 A. 264, was decided, holding that the compensation to be paid to an employee disabled by pneumoconiosis should be based upon the average weekly wages for twenty-six weeks next preceding disability instead of proceding the cessation of the particular work causing the disability. On December 11, 1931, the defendant and its insurer filed an application with the commissioner that the award in the present case be opened and modified by changing the rate of compensation so as to conform to that decision by basing the compensation upon the wages earned during the twenty-six weeks preceding incapacity. This application was granted and the award so modified, and the plaintiff appealed to the superior court.

The first reason of appeal was that the commissioner had no power to modify the previous award " by reason of a supposed error of law in the rendition thereof," and the overruling of this reason is assigned as error on the appeal to this court. The memorandum of decision shows that the superior court based its ruling upon Thompson v Towle, 98 Conn. 738, 741, 120 A. 503, are in this court the appellee relies solely upon the same precedent. In that case the compensation commissioner in the original award had refused to reimburse the employee for medical expenses, it having been generally held by the commissioners that an employee who had failed to notify his employer of his injury could not recover these expenses. In Bongialatte v. H. Woles Lines Co., 97 Conn. 548, 117 A. 696, this court held that the employee was entitled to reimbursement unless the employer had been prejudiced by the failure to give the required notice, which the finding negatived. Thereafter the plaintiff in Thompson v. Towle applied for and obtained a modification of the original award so as to allow him reimbursement for medical expenses and this court, on reservation, advised that it was within the power of the commissioner to so open and modify the award.

Standing by itself. Thompson v. Towle would justify modification of the award in the quite analogous situation presented in the instant case. However, a review of the decisions relating to the power of a compensation commissioner to modify an award or agreement-especially what we deem a true conception of the effect of subsequent decisions-heads to a different conclusion. The commissioner's power is derived from and depends upon section 5240 of the General Statutes, under which it may be exercised whenever it shall appear to him: " (a) That the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed-(b) That changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit [of the Compensation Act]-(c) The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court." The section further provides: (d) " The compensation commissioner shall retain jurisdiction ever claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question."

In Fair v. Hartford Rubber Works Co. (1920) 95 Conn. 350, 111 A. 193, 194, a voluntary agreement, approved by the commissioner, provided for payments to the injured employee upon the theory that he was entitled only to compensation for the loss of an eye, no mention being made of the fact that he had previously lost the sight of his other eye. It was held that, although the facts did not bring the case within those provisions of the statute which for convenience we have usually and herein designated as subdivisions (a) and (b), yet as (c) " gives the commissioner the same revisionary power over his award that any court of equity in this state had over its decrees" and " courts of equity have inherent power to reopen a decree based on a mistake of fact," and as the mistake involved was clearly one of fact, the commissioner had power to reopen and modify the ward. In Grabowski v. Miskell (1921) 97 Conn. 76. 84, 115 A. 691, it was held that, upon clear proof of fraud in procuring an original award, the commissioner had power to reopen and change it under remedy (c).

The next case, Thompson v. Towle (1923) 98 Conn. 738, 120 A. 503, 504, as we have noted, involved a mistake of law instead of fact and was clearly outside of the scope of remedies (a) and (b). No attempt was made to bring it under (c) which had been utilized in the two prior cases, but revision of the award was held to be authorized under provision (d) as within the retained jurisdiction of the commissioner over awards and agreements " for any proper action thereon" during the whole compensation period. The view was expressed that under this provision " after an award and during the whole compensable period applicable to the injury in question, the relation of the commissioner to the award is similar to that of a court to a judgment during the term at which it is rendered," and that " the only limitation upon a commissioner's power to open an award is that it must be ‘ for any proper action thereon" ’ : it was held that a supplemental award allowing reimbursement for expenses which had been denied in the original award because of the erroneous belief and ruling of the commissioner as to the legal effect of failure to give notice upon the recovery of such expenses constituted " proper action" on the award within that provision (d) of the statute.

In Hayden v. R. Wallace & Sons Mfg. Co. (1923) 100 Conn. 180, 123 A. 9, the motion was made on the ground that while the voluntary agreement had been approved and two supplemental awards made on the assumption that the plaintiffs were employees of the defendant, it had been ascertained later that they were, instead, employees of an independent contractor....