Makris v. Chase Brass & Copper Co.

• Decision Date: 15 December 1949
• Citation: 71 A.2d 77,136 Conn. 340
• Court: Connecticut Supreme Court
• Parties: MAKRIS v. CHASE BRASS & COPPER CO., Inc. Supreme Court of Errors of Connecticut

Page 77

71 A.2d 77

136 Conn. 340

MAKRIS v. CHASE BRASS & COPPER CO., Inc.

Supreme Court of Errors of Connecticut.

Dec. 15, 1949.

William K. Lawlor, Waterbury, for the appellant (plaintiff).

William J. Secor, Jr., Waterbury, with whom, on the brief, was J. Warren Upson, Waterbury, for the appellee (defendant).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS and DICKENSON, JJ.

DICKENSON, Judge.

The appeal before us is from the decision of the trial court dismissing an appeal from the denial by a workmen's compensation commissioner of a motion to reopen the award. The plaintiff suffered a contusion of the lower back on January 14, 1945, while working for the defendant. A voluntary agreement between the parties for compensation was approved by the compensation commissioner on February 19, 1945, by the terms of which the plaintiff was to receive $30 a week during the period of total incapacity due to the injury. Payments under this agreement were made to October 18, 1945. On December 17, 1945, a hearing was held by the commissioner upon the claim of the plaintiff that he was still totally incapacitated. The defendant claimed that the plaintiff had recovered from the effects of his injury. The plaintiff had been examined by Dr. Edwin Pyle and Dr. Bernard Brody at the request of the defendant and in connection with Dr. Brody's examination had been admitted to a hospital on June 25, 1945, and discharged July 3, 1945. It was the opinion of Dr. Pyle, who examined the plaintiff on March 8 and August 14, 1945, that he had an acute low back muscle strain and would be benefited by use of a canvas belt and physiotherapy and that there was a large neurotic element in the case. Dr. Brody examined the plaintiff on April 13, 1945. In his opinion X-rays disclosed rather marked arthritis of the upper lumbar spine and a spondylolisthesis, or displacement, of the fifth lumbar vertebra, both of which conditions were of long standing and were sufficient to explain the plaintiff's symptoms. Dr. Brody was of the further opinion that the X-rays showed no findings of a reptured intervertebral disc. The defendant had employed a detective to follow the plaintiff and photograph him in his various activities. The moving pictures were shown in evidence and examined by both doctors. Dr. Pyle then testified that it appeared from the pictures that the plaintiff used his back in a normal way and that there was no question but that he was malingering. Dr. Brody testified that his opinion had not changed 'too much' after seeing the pictures, because it was obvious to him that the plaintiff's complaints and behavior were out of proportion to the objective findings, and that it was his opinion that the plaintiff had recovered at least to the extent of almost normal restoration and could do light work. As the plaintiff still persisted in his claim, the commissioner advised him to consult another doctor. The plaintiff consulted Dr. Ryder, who referred him to another doctor and later notified the commissioner that the plaintiff had hypertrophic spurring of the spine, that he could not find anything else the matter with him and that his complaints were due to compensation neurosis if anything. The commissioner came to the conclusion that the plaintiff did not have a ruptured disc, was malingering, and could do light work, and dismissed his claim.

The plaintiff filed a motion on January 7, 1948, in which he requested a new and further hearing and modification of the award. In this motion he made the claim that he was still totally incapacitated, but further stated that since December 17, 1945, he had been ready, willing and able to do light work but that the defendant refused to employ him and he had been unable to get work elsewhere.

Hearings were held on this motion on February 4 and 20 and July 8, 1948, by a commissioner other than the one who had made the award. At the last hearing, the plaintiff introduced the testimony of Dr. John Wertheimer that he had examined the plaintiff in 1948 and that he had a damaged disc, as a result of the injury, which had become progressively worse since the award of December, 1945, and now totally incapacitated him. The commissioner, in ruling on the plaintiff's motion, stated that he had reviewed in addition to Dr. Wertheimer's evidence, that of the 1945 hearing; that Dr. Wertheimer disagreed with the earlier medical testimony; and that the evidence was merely cumulative and as such would not change the result reached in the original finding and award. He denied the motion. The plaintiff sought a correction of the finding by the addition of a statement that his condition was the result of an injury to the disc which had grown progressively worse since January 5, 1945, and that he was unable to do any work. From a denial of this motion the plaintiff appealed to the Superior Court. The court dismissed the appeal on the ground, as appears in its memorandum of decision, that the entire evidence before it justified the commissioner in refusing to correct his finding and that his ruling that the additional medical...