Mund v. Farmers' Co-op.

• Citation: 94 A.2d 19,139 Conn. 338
• Court: Supreme Court of Connecticut
• Decision Date: 16 December 1952
• Parties: MUND v. FARMERS' COOPERATIVE, Inc. et al. Supreme Court of Errors of Connecticut

Page 19

94 A.2d 19

139 Conn. 338

MUND v. FARMERS' COOPERATIVE, Inc. et al.

Supreme Court of Errors of Connecticut.

Dec. 16, 1952.

Edward S. Pomeranz, Hartford, with whom was William P. Aspell, Hartford, for appellants (named defendant and defendant Liberty Mut. Ins. Co.).

Bernard Insler, New Haven, with whom on the brief, were David E. FitzGerald, Jr., and Joseph M. Brandon, New Haven, for appellants (named defendant and defendant Ocean Accident & Guarantee Corp., Ltd.).

Benjamin A. Markman, Hartford, for the appellee (plaintiff).

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS, and O'SULLIVAN, JJ.

BROWN, Chief Justice.

The Superior Court dismissed the defendants' appeals from a finding and award of the workmen's compensation commissioner in favor of the plaintiff against the defendant employer and its two defendant insurers. Each of the latter, together with the employer, took an appeal. By agreement these have been combined in the present appeal. The question so presented is whether the trial court erred in sustaining the commissioner's finding and award.

The material facts found by the commissioner are not subject to correction and may be thus summarized: Since prior to July 29, 1946, except for periods of disability, the plaintiff has been continuously employed by the defendant employer. It insured its liability from July 29, 1946, until May 10, 1948, with the defendant Ocean Accident and Guarantee Corporation, Ltd., and thereafter, through June 29, 1950, with the defendant Liberty Mutual Insurance Company.

On July 29, 1946, the plaintiff strained his back in the course of his employment. Pursuant to an award of compensation for total disability, he was paid at a weekly rate of $22.56 by the defendant Ocean Accident. The plaintiff was totally disabled by the 1946 accident until October 13, 1946, when he returned to light work. His recovery was slow and he had recurrences of back pain and total disability in 1947. He continued under a doctor's care, and after a myelogram was done in January, 1948, the diagnosis was a possible ruptured disc at the intervertebral space between the fourth and fifth lumbar vertebrae and congenital anomalies consisting of a transitional fifth lumbar vertebra and narrowed lumbosacral joint space. Conservative treatment was continued, with ensuing cast, back brace and belt. While still wearing the brace, the plaintiff returned to light work about July 1, 1948. Thereafter, he continued to show improvement but suffered some pain. As of January, 1950, he had a 15 per cent permanent disability remaining from the accident of July 29, 1946.

On June 29, 1950, the plaintiff was stamping cardboard milk bottles into a container in the course of his employment when he felt a sharp pain in his back. The next day his doctor had him admitted to the hospital, where another myelogram was done and an operation performed. A ruptured disc was found in the intervertebral space between the fourth and fifth lumbar vertebrae and was removed. Recovery was uneventful, and on October 16, 1950, the plaintiff returned to light work without reduction of pay. The plaintiff's average weekly wage on June 29, 1950, was $69.01.

The commissioner further expressly found that the plaintiff had a congenitally weak back which made him susceptible to injury. The accidental injury of July 29, 1946, was a ruptured disc at the 4-5 lumbar interspace. The rupture responded to conservative treatment and partially healed, achieving maximum improvement in January, 1950, at which time the plaintiff had a residual permanent disability of 15 per cent. On June 29, 1950, the plaintiff sustained a new accidental injury, consisting of a reopening of the old rupture at the 4-5 lumbar interspace. The two accidents were equal, concurrent and contributing causes of the plaintiff's disability since that date, the second injury being superimposed upon and an aggravation of the condition remaining from the first injury. The commissioner directed that the defendants pay the plaintiff compensation for total disability at $32 per week from June 29 to October 16, 1950, together with specified medical bills which were found to be reasonable, and assume charges for continuing medical treatment as recommended by the plaintiff's attending physician.

The appeal presents the question whether the court erred in sustaining the commissioner's decision requiring both of the defendant insurers, as well as the defendant employer, to pay the award. Liberty Mutual urges that no liability can attach to it because the incident in which the plaintiff was involved on June 29, 1950, did not constitute a new accident under the terms of the Workmen's Compensation Act. Section 7416, of the act, however, provides that "personal injury,' * * * shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment'. Furthermore, 'an internal injury that is itself sudden, unusual and unexpected is none the less accidental, because it is incurred in the course of the employee's ordinary work'. St. John v. U. Piccolo & Co., 128 Conn. 608, 611, 25 A.2d 54, 56; Garofola v. Yale & Towne Mfg. Co., 131 Conn. 572, 575, 41 A.2d 451; Jones v. Hamden, 129 Conn. 532, 534, 29 A.2d 772. 'The court cannot review conclusions of fact made by a commissioner which merely concern the weight of evidence and the credibility of witnesses. * * *' Powers v. Hotel Bond Co., 89 Conn. 143, 153, 93 A. 245, 249; Kosik v. Manchester Construction Co., 106 Conn. 107, 109, 136 A. 870. Since there was ample evidence that the plaintiff did sustain a new accidental injury on June 29, 1950, it follows that, as indicated by the language quoted above, the contention of Liberty Mutual cannot prevail.

The other claim urged by Liberty Mutual in support of its appeal is that, even though the 1950 incident was a new accident within the terms of the act, the 1946 accident was the sole cause of the plaintiff's injury. Its suggestion is that the 1950 incident merely constituted a recurrence of the 1946 injury and was so minor a factor that it could constitute no material part of the cause of the plaintiff's injury for which compensation was awarded. Not only is the principle quoted from the Powers case also applicable here but, as the Superior Court properly held in this connection, it had no power to overrule the commissioner's finding that '[t]he two accidents were equal, concurrent and contributing causes of the [plaintiff's] disability,' since its right is restricted to correcting the finding when it is so unreasonable as to justify judicial interference. Leszczymski...