Mercier v. American Refractories & Crucible Corp.
| Decision Date | 05 May 1964 |
| Citation | 200 A.2d 716,151 Conn. 559 |
| Court | Connecticut Supreme Court |
| Parties | George MERCIER v. AMERICAN REFRACTORIES AND CRUCIBLE CORPORATION et al. Supreme Court of Errors of Connecticut |
Clarence A. Hadden, New Haven, for appellant (plaintiff).
Francis J. Moran, New Haven, with whom, on the brief, were John E. McNerney, Albert R. Moquet and Robert F. Moran, New Haven, for appellees (defendants).
Before KING, C. J., and MURPHY, SHEA, ALCORN and COMLEY, JJ.
The plaintiff appeals from a judgment of the Superior Court dismissing his appeal to that court from an adverse decision of a workmen's compensation commissioner. Error is assigned in the court's failure to correct the commissioner's finding and award, in failing to rule on an evidential question, in failing to grant the plaintiff's motion for an order requiring the commissioner to certify to the court certain documents from the commissioner's file and in overruling the plaintiff's claims of law.
The court did not err in refusing to correct the commissioner's finding. Additions which are sought in the finding relate only to facts taken either from uncontradicted testimony or from documents, some of which were not even marked as exhibits, and do not involve admitted or undisputed facts. It was the commissioner's function to find the facts and determine the credibility of witnesses. Palumbo v. George A. Fuller Co., 99 Conn. 353, 355, 122 A. 63. A fact is not admitted or undisputed merely because it is uncontradicted; Practice Book, 1963, § 628(a); or because it appears in an exhibit marked in evidence. Goldblatt v. Ferrigno, 138 Conn. 39, 41, 82 A.2d 152. One deletion sought in the finding would be of no advantage to the plaintiff because the same facts appear in another paragraph of the finding which is not attacked, and the claim that another deletion should be made is not pursued in the brief and is, therefore, treated as abandoned.
The court's refusal to order the commissioner to certify five documents from his file was correct. The information contained in three of the documents appears in corrections which the commissioner made in the finding. The court did not abuse its discretion in refusing to order certification of the other two documents. The motion was based on Practice Book, 1951, § 311, as amended (now Practice Book, 1963, § 433), which permits the court to order certification of a part of the record which it deems necessary for the proper disposition of the appeal. These documents were forms, one of which was claimed to have been filed with the commissioner in February, 1955, reciting an injury to the plaintiff's back during the week ending January 29, 1955, and the other was a notice of intention to terminate compensation payments, allegedly received by the commissioner on April 21, 1955. For reasons which will subsequently appear the court could properly conclude that they were not necessary for the proper disposition of the appeal.
The plaintiff complains that the court erroneously failed to consider a ruling by the commissioner refusing to admit into evidence the entire file of the defendant insurance company, hereafter called the insurer, concerning the plaintiff. The file was offered by the plaintiff as tending to show that the insurer had treated the plaintiff's case as an accepted workmen's compensation case. The insurer objected on the ground that there was nothing to indicate that anything in the file would serve that purpose. The commissioner sustained the objection, indicating that he would not admit the large file as an exhibit and thereby make it necessary to search through it for such material as might be pertinent to the purpose of the offer. The commissioner then suggested a recess to permit the plaintiff's attorney to examine the file for anything of evidential value which he might wish to offer. A recess was thereupon taken, but no further offer of evidence from the file was made by the plaintiff. Under these circumstances, the commissioner's ruling was harmless.
There remain for consideration the plaintiff's claims of law, which amount to the assertion that the insurer should, on the equitable principles of waiver, estoppel or laches, be denied the right, at this time, to contest the claim of the plaintiff that he is suffering from a compensable injury. The basis of the claim is that the insurer had, by its action over a period of seven and one-half years, lulled the plaintiff into the belief that his case was being treated as a compensable one so that now, when called on to do so, he is unable to prove a 1955 injury arising out of his employment.
The facts may be summarized as follows. The plaintiff, while employed by the named defendant, sustained a lumbosacral strain arising in the course of and out of his employment on September 14, 1954. He was treated by the company doctor, lost no time from work, suffered no disability, either permanent or temporary, and continued in his employment with the named defendant. He worked without incident until the latter part of January, 1955, when he complained to his employer of difficulty with his legs, arms, hips and shoulder blades. On February 17, 1955, he complained to the insurer of pain between his shoulder blades and in his chest, right hip, leg and left arm. He did not, however, relate the symptoms to any accidental injury but, on the contrary, stated that the pain had commenced some two months prior to February 17, 1955. From January 28, 1955, to January 2, 1962, he was examined and treated by various doctors at the expense of the insurer. During all of this period, he continued to work for the defendant employer except for a period of thirteen weeks from and after January 31, 1955, during which he was paid compensation and for a part of which time he was hospitalized at the expense of the insurer. From April 19, 1955, until February 23, 1962, he worked continuously and satisfactorily for the defendant employer. Owing to a lack of the type of work he had been performing a conference was held on February 20, 1962, between the plaintiff and representatives of...
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...a fact is not admitted or undisputed merely because it is uncontradicted. Practice Book § 628(a); Mercier v. American Refractories & Crucible Corporation, 151 Conn. 559, 560, 200 A.2d 716. 'Upon an appeal to the Superior Court from the finding and award of a compensation commissioner, the c......
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