Rossi v. Thomas F. Jackson Co.

• Decision Date: 05 November 1935
• Citation: 120 Conn. 456,181 A. 539
• Court: Connecticut Supreme Court
• Parties: ROSSI v. THOMAS F. JACKSON CO. et al.

181 A. 539

120 Conn. 456

ROSSI v. THOMAS F. JACKSON CO. et al.

Supreme Court of Errors of Connecticut.

November 5, 1935

Appeal from Superior Court, New Haven County; Patrick B O'Sullivan, Judge.

Michael Blansfield and William B. Hennessy, both of Waterbury, for appellant.

Walter E. Monagan, of Waterbury, Harold K. Watrous and Daniel G Campion, both of Hartford, for appellees.

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

HAINES, Judge.

The claimant was continuously employed by the named defendant as a granite cutter from March 22, 1921, to November 29, 1924, when he left that employ and at intervals thereafter did work, other than stone cutting, for other parties. On December 8, 1932, he became aware for the first time that he had pneumoconiosis. On December 13, 1932, he gave the named defendant notice of a claim for compensation, and upon a hearing by the commissioner was awarded $18 per week. Upon the defendants' appeal, the superior court set aside the award of the commissioner, but upon claimant's appeal to this court, we found error and remanded the cause for further action by the then commissioner Lynch, who had succeeded Commissioner Williams, deceased. Rossi v. Thomas F. Jackson Co., 117 Conn. 603, 169 A. 617.

The claimant again appeals to this court. The assignment of error upon which he places the most emphasis involves two questions: First, whether the claimant, as the commissioner held, was incapacitated on November 29, 1924, when he left the named defendant's employ, and, second, whether the notice of the claim for compensation given December 13, 1932, was within the time prescribed by law so that claim for compensation could then be maintained.

The facts appearing in the finding may be stated as follows: The claimant was a man about sixty years of age who learned the business of stone-cutter in his native country, Italy; coming to this country in 1900, he worked at his trade in Maine, New Hampshire, Vermont, and New York before coming to Waterbury, where in March, 1921, he entered the employ of the named defendant and continued therein until November 29, 1924, working on an average of six or seven months a year; the average weekly wage earned by the claimant while he was in the employ of the employer was $36 a week. After he ceased that employ, he earned between $20 and $25 a week on occasional jobs where he was employed, doing light work at intervals for other people, but he did no more work at his trade of stone-cutter.

In 1924 he consulted Dr. Graves, and, after informing him that his trade was that of stone-cutter, he was examined by the physician; his symptoms as manifested at that time indicated that he was suffering from some lung trouble, but Dr. Graves disagnosed the trouble as bronchitis and asthma and advised him to give up his work of a stone-cutter as it was a source of danger to him. From the spring of 1925 to the fall of 1928, he frequently consulted Dr. Testa, an Italian physician with whom he could talk in the Italian language; and in the spring of 1929 he consulted Dr. Johnson; he was then acutely ill and in bed with a temperature of 102; he had a pain in his chest with cough and expectoration; it was found he had a chronic imflammatory condition of his lungs; he had rules, raspy breathing, and a history of a cough prior to infection. Dr. Testa, upon learning that he was a stone-cutter, advised him to keep away from any occupation where there was dust and he, too, diagnosed the trouble as acute bronchitis and asthma. In 1932 the claimant consulted Dr. Hennessey, a lung specialist, complaining of persistent cough with expectoration, slight loss of weight, loss of appetite, and shortness of breath, and stated that these symptoms had been present " the past few years." -rays were used and Dr. Hennessey then diagnosed the trouble as pneumoconiosis.

The commissioner found that all of these enumerated symptoms are common to bronchitis and asthma and pneumoconiosis; further, that stone-cutters take free silica into the lungs from the beginning of their work and the condition of the lungs becomes worse while that occupation is continued; also that pneumoconiosis does not reach full development until after ten or fifteen years, and then becomes incurable. We must assume that these findings reflected the medical testimony which was before the commissioner. These facts would not have been materially strengthened for the benefit of the claimant if his motion for correction and rectification of the finding had been granted. The conclusion that the claimant had pneumoconiosis in 1924 is one the commissioner could reasonably reach in view of the conditions above recited, and in fact it would be difficult to believe that such was not the case. It was also reasonable for him to conclude that the earning capacity of the claimant was at least partially destroyed in 1924 when he left the employ of the named defendant, and this, therefore, must be held to be the time when he became entitled to compensation.

The further fact appears, however, that the claimant did not know he was suffering from the occupational disease of pneumoconiosis until 1932. During the period of ill health which is shown to have ensued after he left the employ of the named defendant, he consulted two physicians and each diagnosed his trouble as bronchitis and asthma, and it was not until December 8, 1932, that the third physician, with the benefit of X-rays, discovered that he had pneumoconiosis.

A compensable injury having occurred in 1924, the respective rights and obligations of both parties to the contract of employment were fixed and determined by the statutory provisions in force at that time. It was then required by General statutes 1918, § 5360, that notice of claim for compensation must be given by the employee within one year from the " date of the injury," and we have held this term to mean the " date of the compensable injury" and not the date of the accident or occurrence from which the incapacity resulted, and that from the date of the accident to the end of the statutory waiting period following incapacity no matured right to compensation exists. Esposito v. Marlin-Rockwell Corporation, 96 Conn. 414, 417, 114 A. 92. A right is only matured when a compensable injury has been followed by notice to the employer, given in conformity to the statute. " The relation of the parties being contractual and the terms of the Compensation Act being incorporated into the contract of employment, the rights and obligations of the parties were defined by that act. ‘ The liability of an employer *** was not fixed by the simple fact of...