Michna v. Collins Co.

• Decision Date: 07 February 1933
• Citation: 116 Conn. 193,164 A. 502
• Court: Connecticut Supreme Court
• Parties: MICHNA v. COLLINS CO. et al.

164 A. 502

116 Conn. 193

MICHNA v. COLLINS CO. et al.

Supreme Court of Errors of Connecticut.

February 7, 1933

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

Proceeding under the Workmen's Compensation Act by Stanislaw Michna claimant, opposed by the Collins Company, employer, and others. From a finding and award of the compensation commissioner for the Second district acting for the commissioner of the First district in the claimant's favor, an appeal by the employer was taken to the Superior court and reserved for the advice of the Supreme Court.

Superior Court advised to remand the case to the compensation commissioner for further hearing and for amendment of the award as indicated in the opinion.

George H. Day, of Hartford, for appellant.

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

HINMAN, J.

The finding of the commissioner is that the plaintiff entered the employ of the Collins Company in April, 1913, and worked for about two months in the yard, then started wet grinding, at which occupation he worked practically continuously until August, 1923, when he was transferred to dry grinding and continued at this work until about April 19, 1924, at which time he quit the employ of the Collins Company and did not work thereafter in its plant. When he entered the employ of the Collins Company he was in good health and, although he noticed a change in his condition prior to his leaving, his health was such that he worked until some time in 1930 when he began to feel ill, and eventually in August, 1930, was forced to give up employment of all kinds because of a lung condition. Because of his grinding at the Collins plant, he contracted a pneumoconiotic condition of the lungs and this disease is the cause of his disability. Experience shows that pneumoconiosis may be contracted by a worker and not cause disability for some years thereafter. Frequently a long time after the worker has quit wet grinding his health fails and his lungs break down due to the pneumoconiosis which he acquires in this occupation. The plaintiff's disability is chargeable to his employment by the Collins Company as a wet grinder, and the record does not indicate that his work in other occupations in which he was engaged after 1924 played any part in his present disability. The plaintiff having contracted pneumoconiosis is entitled to compensation inasmuch as that disease constitutes a compensable personal injury, which injury arose out of and in the course of his employment by the defendant.

The commissioner held, further, that the plaintiff had been disabled from work of all description because of his pneumoconiosis since August 23, 1930, and awarded compensation from that date based upon his average weekly wage during his last twenty-six weeks of employment by the Collins Company.

The only material correction of the finding, sought by the defendant, as to operative facts, which was not granted either by the compensation commissioner or by the superior court is to the effect that the disability of the plaintiff from following his customary occupation occurred in July 1924, instead of August, 1930, as found. It appears from the undisputed evidence that the reason for the plaintiff's ceasing work at wet grinding in 1923 was that this kind of work was then discontinued in the defendant's shop. After April, 1924, when he left employment with the defendant as a dry grinder, the plaintiff worked for others as a laborer at heavy work until 1930, and it does not appear that any inability to work, occasioned by pneumoconiosis, occurred before the latter time. It was within the province of the commissioner to discredit the indefinite testimony of the plaintiff as to discomfort in his chest or to exclude it from effect upon his capacity to work in 1924, especially in view of his employment history after leaving that of the defendant, and the medical evidence. We cannot hold that the evidence requires the change requested. Consequently, the defendant is not entitled to a conclusion that the plaintiff failed to file claim for compensation within one year after occurrence of incapacity as required by section 5245 of the General Statutes (section 5360 of the General Statutes 1918) as construed in Esposito v. Marlin-Rockwell Corp., 96 Conn. 414, 114 A. 92.

One of the two claims of law reserved for the advice of this court as stated by the defendant, is that " the commissioner erred in holding that the date of the injury is the date when the claimant was first disabled for seven days from work of all description" instead of the date when he was first incapacitated " from working at his customary occupation" although able to engage in some other employment. The ruling and conclusion of the commissioner were based on the facts found, and these do not disclose any disability to work, because of pneumoconiosis, until August 23, 1930, although the disablement then occurring was from work of all descriptions. If it appeared, instead, that the plaintiff had ceased wet grinding in 1923 or dry grinding in 1924 because of incapacity to do that work on account of pneumoconiosis, but was yet able to work at some other, although less lucrative, employment, and had then claimed...