Silva v. Wheeler & Williams, Ltd.

• Decision Date: 20 December 1933
• Docket Number: No. 2110.,2110.
• Citation: 32 Haw. 920
• Court: Hawaii Supreme Court
• Parties: ANTONE R. SILVA v. WHEELER & WILLIAMS, LIMITED, AND THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION OF LONDON, ENGLAND.

32 Haw. 920

ANTONE R. SILVA

v.WHEELER & WILLIAMS, LIMITED, AND THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION OF LONDON, ENGLAND.

No. 2110.

Supreme Court of the Territory of Hawai‘i.

Argued November 22, 1933.

Decided December 20, 1933.

RESERVED QUESTION FROM CIRCUIT COURT FOURTH CIRCUIT. HON. H. L. ROSS, JUDGE.

Syllabus by the Court

When, by an accident arising out of and in the course of his employment, an employee is struck on and immediately below one of his eyes by a flying piece of rock, immediately reports the accident to his employer, is immediately given medical care and hospitalization, becomes at once, upon the happening of the accident, and remains thereafter for a period of two weeks, wholly disabled from performing any labor, thereafter for a period of approximately six months is able to and does perform his usual work for his employer and is paid full wages therefor and then, at the end of the six months' period, for the first time, learns that the sight of his eye, which had been constantly growing dimmer, is utterly lost and can not be restored, “the date of the injury,” within the meaning of the statutory limit of three months prescribed by section 3624, R. L. 1925, is the date of the accident and not the date when the employee first learned that he had suffered the entire loss of his eye.

In such a case if a claim for compensation is made within three months from the date of the accident which immediately results in compensable, complete, though temporary, disability to work and if an award of compensation is made therefor, the award may, upon proper application and without regard to the statutory limit of time, be increased so as to compensate the employee for the subsequently ascertained loss of his eye.D. E. Metzger (also on the briefs) for plaintiff.

N. M. Newmark ( H. Irwin and Robertson & Castle on the brief) for defendants.

PERRY, C. J., BANKS AND PARSONS, JJ.

OPINION OF THE COURT BY PERRY, C. J.

The defendant, Wheeler & Williams, Limited, was the contractor performing a contract for the construction of a public highway in the district of South Kona, on the Island of Hawaii. The plaintiff was its employee performing services under it on the same job. The Employers' Liability Assurance Corporation of London, England, was the insurance carrier of Wheeler & Williams. On February 21, 1931, while the plaintiff was operating an air compressor in aid of the construction of the road, a piece of rock, set loose by a blast, struck him on and immediately below the left eye. The plaintiff orally reported the accident at once to his employer and the latter immediately and thereafter from time to time during the whole of the period involved in this controversy furnished him with medical attendance and supplies and hospitalization. From February 21 until March 9 the plaintiff was wholly incapacitated from the performance of any work and for that period of approximately two weeks no payments of compensation were made by the employer to him. On March 9, in the belief that he was sufficiently recovered and upon the representation and advice of the doctors that he was sufficiently recovered, the plaintiff resumed his labor as the employee of Wheeler & Williams and continued thereafter to work on the same job until August 28, 1931, during that period making visits at irregular intervals to the doctor for treatment to the eye. During that period of time, however, the vision in that eye grew consistently dimmer and dimmer until it finally ceased on August 28, 1931. On that day he was discharged from his employment. The employer paid the plaintiff his regular wages in full for all of the time that he worked between March 9 and August 28. Thereafter the employer continued to furnish medical aid and hospitalization to the plaintiff. On October 17 after further examinations by physicians the plaintiff was, for the first time, informed that the sight of his left eye was entirely lost and could not be restored. Until that date he had been led to believe by the attending physicians that sight would return to the eye after the course of prescribed medical treatment. No claim for compensation was filed by the plaintiff either with the employer or with the industrial accident board having jurisdiction in the premises until October 28, 1931, and the employer filed its first and final reports of the accident with the industrial accident board on November 10, 1931.

The industrial accident board awarded to the plaintiff compensation for the loss of his eye. From that judgment the case went on appeal to the circuit court of the fourth judicial circuit and there all the parties concerned agreed that the cause be tried without the intervention of a jury. A stipulation was entered into in the circuit court that the facts were as above stated, the stipulation, however, reciting them much more in detail. Thereupon the circuit court reserved for the consideration of this court a question by it stated as follows: “Can compensation be awarded the claimant under the Workmen's Compensation Law, or is such claim barred by section 3624 R. L. Territory of Hawaii, 1925, as amended by Act 93, Session Laws, 1931, under the foregoing agreed facts, where the claimant suffered an accident on February 21st, 1931, during and in the course of his employment from which it could be found there resulted a total loss of sight of an eye on August 28, 1931, where, after two weeks' hospitalization said employee was returned to work by the employer's physicians at the employer's request, and was able to thereafter continue his work without interruption for more than 24 weeks, during which time he was paid full and regular wages but was never paid any compensation, either by his employer or its insurance carrier, for time lost by reason of the accidental injury, and made no claim of incapacity or for compensation until two months after his incapacity became manifest and his discharge from employment on August 28th, 1931, which date of claim was 11 days after he was first informed by the employer's physicians that his eyesight was permanently lost and could not be restored?”

Section...