Morisi v. Ansonia Mfg. Co.

• Decision Date: 18 June 1928
• Citation: 108 Conn. 31,142 A. 393
• Court: Connecticut Supreme Court
• Parties: MORISI v. ANSONIA MFG. CO. ET AL.

142 A. 393

108 Conn. 31

MORISI v. ANSONIA MFG. CO. ET AL.

Supreme Court of Errors of Connecticut.

June 18, 1928

Appeal from Superior Court, New Haven County; Isaac Wolfe, Judge.

Harold K. Watrous, of West Hartford, for appellants.

Patrick B. O'Sullivan and William F. Healey, both of Derby, and Anthony Corsello, of Ansonia, for appellee.

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

MALTBIE, J.

On December 23, 1921, the compensation commissioner awarded weekly compensation to the plaintiff, to be paid until it should appear that his incapacity by reason of the injury had increased, decreased, or ceased, but not for longer than the period of 520 weeks fixed by the statute as the maximum time and in the same award he recommended a surgical operation. This the plaintiff refused to undergo, and on January 12 1922, the respondent insurer stopped making payments to him. About a year later, on January 24, 1923, he did undergo the operation, and thereafter the insurer resumed making weekly payments to him, and continued them until his incapacity ceased on April 30, 1923. He did not go to work however, at that time, but in November, 1923, he entered the employment of an employer other than the respondent company. Subsequently he suffered another injury, and then consulted counsel as to his rights. On August 14, 1926, his counsel applied to the clerk of the superior court for an execution based upon the award of December 23, 1921, and one was issued for $1,801.27, this being the amount of the weekly award for the period during which the insurer had made no payments to him, with interest. The insurer thereupon procured an injunction against the service of the execution, and on October 1, 1926, filed a motion for a modification of the award. The respondents claimed that the award should be modified and that the modification should be retroactive to take effect when incapacity had ceased, that is, on April 30th, 1923. The commissioner in a pro forma award granted the motion in so far as to modify the award so that the respondents would be relieved of any obligation to make payments after the date of the application, but refused to make his order retroactive so as to take effect as of the time when incapacity had ceased. The respondents have appealed and the question for us to determine is whether the commissioner erred in refusing the latter relief.

The powers of compensation commissioners are wholly the creation of the statute, and our inquiry must be as to the intent of the Legislature in the provisions it has made as to the revision of awards. These are found in section 5355 of the General Statutes, and the particular clause here involved is that one which states that an award or voluntary agreement as to compensation shall be subject to modification upon the request of either party whenever it shall appear to the commissioner that the incapacity of the employee has increased, decreased, or ceased. We have had occasion several times to consider this section of the statute, but none of our decisions involved the question now before us. A search for authorities in other jurisdictions discloses only a few decisions where a like question has been involved. These generally uphold the power of compensation boards or commissioners to make orders retroactive in effect, even though the statute contains no express authority to do so. Fennessey's Case, 120 Me. 251, 113 A. 302; Zooma's Case, 123 Me. 36, 121 A. 232; Gvozdic v. Inland Steel Co. (Ind. App.) 154 N.E. 804; Criso v. Edgewater Sawmills Co., 198 A.D. 458, 191 N.Y.S. 316. See, also, Contractors' Indemnity Exch. Co. v. Industrial Commission, 72 Cal.App. 350, 237 P. 404; Morita v. Hawaiian Fertilizer Co., 27 Haw. 431, 438.

The leading authority upon the question is the English case of Gibson & Co. v. Wishart, [1915] App. Cas. 18, 7 B W. C. C. 348, which counsel for the plaintiff very commendably called to our attention, though it is directly opposed to his present claim. In an earlier decision, Donaldson Brothers v. Cowan, [1909] S.C. 1292, 2 B. W. C. C. 390, the court of session had held, on a petition for review, that the right to terminate the payment of compensation might not be made to antedate the filing of the petition. In the Gibson Case, this decision was overruled by the House of Lords, all the Lords Justices agreeing, and each rendering an opinion of considerable length. In general, these opinions revolve around the proposition that, as the right to compensation is by the act limited to the period of incapacity, to construe the provision for a review so narrowly as to preclude an order which would be effective as of the time when incapacity actually ceased would be to run counter to the clear intent of the act, and to pave the way for manifest injustice. In...