Kowalski v. New York, N.H. & H.R. Co.

• Decision Date: 14 February 1933
• Citation: 116 Conn. 229,164 A. 653
• Parties: KOWALSKI v. NEW YORK, N.H. & H. R. CO.
• Court: Connecticut Supreme Court

164 A. 653

116 Conn. 229

KOWALSKI v. NEW YORK, N.H. & H. R. CO.

Supreme Court of Errors of Connecticut.

February 14, 1933

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

Proceedings under the Workmen's Compensation Act by Walter Kowalski opposed by the New York, New Haven, & Hartford Railroad Company. A supplementary finding and award of the compensation commissioners adverse to claimant was affirmed by the superior court, claimant's appeal was dismissed and, from the judgment of the superior court, plaintiff appeals.

No error.

William L. Beers, George E. Beers, and Arthur Klein, all of New Haven, for appellant.

Fleming James, Jr., of New Haven, and Edward R. Brumley, of New York City, for appellee.

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

HINMAN, J.

While the plaintiff was cleaning the flues of a vertical boiler mounted on a flat car, a rod which he was using contacted with overhead wires and he sustained electric burns, abrasions, and shock. Compensation for the total incapacity caused by these injuries was paid under a voluntary agreement. On March 16, 1931, the compensation commissioner made a finding including the fact that shortly after the plaintiff's wounds healed and he was discharged from the hospital, " he began to show symptoms of a functional nervous disturbance and these symptoms have persisted to the present time, resulting in his total incapacity to work," and ordered that payments of compensation be made so long as he " is incapacitated on account of the injury, but not beyond the time limited by statute." Compensation was so paid to March 16, 1931, only, and on July 30, 1931, another hearing was held at the request of the plaintiff, who claimed to be totally incapacitated on account of his injuries. As a result, the commissioner made a finding that " The claimant is not suffering from any organic injury, but the functional nervous disturbance for which compensation was previously granted, and will continue to be present until the question of compensation is settled. The commissioner finds that organically the claimant is able to work and should work, and he is entitled to compensation only to the date of this hearing." He ordered payments to be made up to the date of the hearing in a lump sum, but no longer. The plaintiff appealed to the superior court, which dismissed the appeal (Dickenson, J.), and then to this court. 114 Conn. 393, 158 A. 914. The plaintiff construed the finding we have quoted as stating in effect that the condition, " functional nervous disturbance," found to have resulted in incapacity and for which compensation was granted under the award of March 16, 1931, continued to exist and to cause his incapacity, and claimed that even though, as the commissioner also found, if he went to work, his nervous disorder and consequent incapacity would cease, the finding disclosed no change of condition which would authorize the commissioner to modify the previous award. The defendant interpreted the finding as meaning that: " While the functional nervous disorder still continued, it was no longer dependent upon the original injury, that it would clear up as soon as the question of compensation was settled, and that the litigation was now the sole remaining cause of the disorder and the incapacity. Accordingly, it claimed that there is a finding of a changed condition of fact justifying the termination of payment." 114 Conn. page 395, 158 A. 914, 915.

We held that the finding as made did not enable us to resolve these conflicting claims, and remanded the case for such clarification as would afford an adequate basis for determination as to the factual situation and, thereby, for application of the law. On the remand the commissioner substituted for the finding in question the following: " 4. The claimant is not suffering from any organic injury. He still shows symptoms of nervousness, but is not suffering from what is generally known as 'traumatic neurosis.' 4a. The claimant is now able to work and should work. His continued nervous symptoms are due to the uncertainty created by the continued prospect of reopening his case and granting further compensation, and the symptoms are not proximately caused by his original injury. 4b. The incapacity resulting from the injury has ended, and the claimant is entitled to compensation only to the date of hearing, July 30, 1931." To this, at the instance of the plaintiff, he added that: " Between the times of the two hearings [January 21st, 1931, on which the March finding and award were based, and July 30th, 1931] there was no difference in the condition of the claimant so far as concerns his actual ability to work in point of fact. So far as the physical construction and theoretical operation of the claimant's organs are concerned, he can perform the motions required in work." Motions to correct the finding further, as to the plaintiff's inability to work, and the lack of causal connection between the nervous symptoms and the original injury, were denied by the commissioner and by the superior court on the appeal, which was dismissed, Jennings, J.

On the present appeal to this court the principal contention for the plaintiff is that it appears from the finding that there was no difference, as to actual ability to work, between his condition at the January hearing and that in July, and that there is a failure to disclose that changed conditions of fact have arisen which necessitate a change of the award in order to carry out the spirit of the Compensation Act (Gen. St. 1930, § 5223 et seq.), and that therefore no legal basis is afforded for modification of the original award under section 5240 of the General Statutes. The finding made upon the evidence at the January hearing was that the plaintiff at that time had been unable to work since his injury, and...