Osterlund v. State.

• Decision Date: 03 February 1943
• Parties: OSTERLUND v. STATE.
• Court: Connecticut Supreme Court

129 Conn. 591

30 A.2d 393

OSTERLUND

v.STATE.

Supreme Court of Errors of Connecticut.

Feb. 3, 1943.

Appeal from Superior Court, Hartford County; Comley, Judge.

Proceeding under the Workmen's Compensation Act by John O. Osterlund, compensation claiment, opposed by the State of Connecticut, principal employer. From a supplemental finding and award of the Compensation Commissioner of the second Congressional District, acting for the Commissioner of the first district, for the claimant in an allegedly insufficient amount, the claimant appealed to the Superior Court in Hartford County, Comley, J. From a judgment dismissing the appeal and from a judgment denying a motion to open the judgment, the claimant appeals.

Judgment dismissing appeal set aside and case remanded to Superior Court with direction to sustain appeal and return case to commissioner of first district for further proceedings, and appeal from judgment denying motion to open judgment disregarded.

John O. Osterlund, appellant pro se.

Thoman J. Conroy, Asst. Atty. Gen. (Francis A. Pallotti, Atty. Gen., on the brief), for appellee.

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

MALTBIE, Chief Justice.

The plaintiff, on January 9, 1940, while working as a carpenter in the employ of a contractor, in making repairs at the Cedarcrest Sanatorium in Newington, an institution owned and operated by the state, suffered a severe injury to his heel as a result of a fall from a scaffolding. By a finding and award filed March 30, 1940, the compensation commissioner for the first district, before whom the matter was heard, found that he was entitled to compensation against the defendant as principal employer under the provisions of § 5230 of the General Statutes and ordered the defendant to pay that compensation at the rate of $17.50 a week ‘until it can be shown that the claimant's incapacity has decreased or ceased.’ The plaintiff had been employed at the time of the injury less than a net period of two calendar weeks, and the amount of the award was based on a finding that the average weekly wage prevailing in the community for carpenters was $35. General Statutes, § 5238, amended, § 704f of the Supplement of 1941. On January 15, 1941, a further hearing was held, which in the transcript of the proceedings is stated to have been upon plaintiff's application for an increase in compensation and for a change in doctors. From a letter printed in the record it appears that in the notice of that hearing the commissioner of the first district had stated that the commissioner of the second district had been designated to hear the matter, and that the plaintiff protested against the latter commissioner hearing it because of something alleged to have taken place about two years before when he had had presented to him a question of a waiver of compensation under § 5267 of the General Statutes, in connection with a back injury which the plaintiff had previously suffered. The commissioner designated, however, heard the matter, and on January 20, 1941, filed a supplemental finding was award in which he found that there was no ground for increasing the compensation and that, as the doctors who testified agreed that the plaintiff needed no further medical treatment, there was no occasion to direct a change of doctors; and he further found that the maximum improvement in the injured heel had been reached, and therefore awarded compensation upon the basis of 50 per cent permanent partial loss of function for seventy-eight weeks at the rate of $17.50 a week. General Statutes, § 5237, amended, § 1328e of the Cumulative Supplement of 1939. From that award the plaintiff appealed to the Superior Court and, from the dismissal of the appeal, to this court. Thereafter he made a motion to open the judgment, and from its denial also appealed; but, as that denial is not a final judgment from which an appeal lies, we disregard it. First National Bank v. Ferguson, 129 Conn. 374, 376, 28 A.2d 87.

The plaintiff, a layman, prosecuted the matter in his own behalf in the Superior Court and before us. He has filed no brief in this court, contenting himself largely with the presentation of his claims in the various papers printed in the record and in the file of the Superior Court. In reviewing the matter, we shall follow our usual liberal policy where a layman appears pro se, and consider his claims so far as they are fairly presented upon the record, an approach to the case which counsel for the defendant, desiring to be entirely fair to the plaintiff, have themselves adopted. Higgins v. Hartford County Bar Ass'n, 111 Conn. 47, 52, 149 A. 415.

The first two reasons of appeal in the Superior Court were that the commissioner for the first district should have heard the motions presented at the second hearing. If the commissioner, on adequate grounds, considered himself disqualified, it was his duty to designate another commissioner to hear the matter; General Statutes, § 5242, amended § 1329e of the Cumulative Supplement of 1939; Saddlemire v. American Bridge Co., 94 Conn. 618, 627, 110 A. 63; Glodenis v. American Brass Co., 118 Conn. 29, 38, 170 A. 146; and, the record being silent as to the grounds for his action, we must assume them to have been sufficient. Even if we regard as correct the statements in the plaintiff's letter remonstrating against the designation of the commissioner of the second district to hear the matter, they fail to show any adequate reason why he could not hear and dispose of it fairly and without prejudice.

The record makes it evident that the increase in compensation which the plaintiff claimed in his motion was based not upon a change in the extent of his incapacity or any changed conditions of fact which might affect the award but upon further evidence which he desired to offer bearing upon the finding of the average weekly wage of carpenters prevailing in Newington at the time of his injury. While the motion was not technically in the right form, the defendant made no objection at the hearing and we shall disregard the fact that it was defective in this respect. Saddlemire v. American Bridge Co., supra. The commissioner ruled that, as no appeal had been taken from the original finding and award, the finding was res adjudicata and must stand. The motion was in effect one for a hearing for the consideration of new testimony which the plaintiff desired to offer and this ruling of the commissioner was incorrect. Reilly v. State, 119 Conn. 217, 220, 175 A. 582. Upon such a motion, the ultimate question is whether it appears likely that an injustice has been done and that upon a rehearing a different result would be reached. Olivieri v. City of Bridgeport, 126 Conn. 265, 270, 10 A.2d 770, 127 A.L.R. 1471.

At the original hearing it appeared that the wages paid the plaintiff were 87 1/2 cents an hour for the hours he worked, and there was testimony that, taking into account days when a carpenter, due to weather conditions, could not work, $35 a week would be fair average earnings for a carpenter. If, as appears from the evidence, it is a usual incident of employment of carpenters in the locality in question who are paid upon the basis of a daily wage that they would lose time due to weather conditions, it was proper for the commissioner to take that fact into consideration in determining the average weekly wage. Olivieri v. Bridgeport, supra. The plaintiff was in fact receiving $7 for each eight-hour day. The only new evidence offered was two letters, one from the state labor wage board that the rate of pay for carpenters in Newington in effect on November...