Vegliante v. New Haven Clock Co.

• Decision Date: 10 July 1956
• Court: Connecticut Supreme Court
• Parties: Helen M. VEGLIANTE v. The NEW HAVEN CLOCK COMPANY et al. Supreme Court of Errors of Connecticut

Page 526

124 A.2d 526

143 Conn. 571

Helen M. VEGLIANTE v. The NEW HAVEN CLOCK COMPANY et al.

Supreme Court of Errors of Connecticut.

July 10, 1956.

Alfonse C. Fasano, New Haven, for appellant (plaintiff).

George R. Tiernan, New Haven, with whom was Martin E. Gormley, New Haven, for appellees (defendants).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, WYNNE, and DALY, JJ.

DALY, Associate Justice.

The Superior Court dismissed the plaintiff's appeal from a finding and award of the workmen's compensation commissioner in favor of the defendants, the plaintiff's former employer and its insurer. The plaintiff claimed that under the provisions of the Workmen's Compensation Act, Gen.St.1949, § 7416 et seq., the defendants should pay, or reimburse her for the payment of, bills of physicians and hospitals incurred by her for medical attention, medication and treatment for an occupational disease, radium poisoning; that they should provide medical attention for her in the future; and that they should pay her compensation. The defendants claimed that because the plaintiff failed to give written notice of a claim for compensation or to request a hearing, as required by the controlling statute, she is not entitled to compensation, reimbursement for the medical bills paid by her or the payment by the defendants of future medical bills.

The material facts found by the commissioner are as follows: The plaintiff was employed by the named defendant, hereinafter called the defendant, at its plant in New Haven from December 13, 1922, to March 26, 1931. Until some time in October, 1928, she worked in its radium department, painting dials for clocks and watches with a radium powder. Thereafter, she was transferred to other departments and never again, while employed by the defendant, was exposed to radium or radioactive substances. Because of her work with those substances, the plaintiff had, by September, 1928, become radioactive and was suffering from radium poisoning, an occupational disease peculiar to her work. It was due to causes in excess of the ordinary hazards of employment. At about the time she was transferred to another department, she entered the New Haven Hospital, where she was examined and treated by physicians of the hospital and by physicians whom she understood were employed by the government. Dr. Frederick B. Flinn of Columbia University in New York City was called into consultation. She went, also, to Columbia University and to Dr. Daniel F. Levy, of New Haven, for examinations. She continued under Dr. Levy's treatment, in conjunction with the consultants, for several years. For the first two or three years she received injections every other day. These examinations and treatments and the medical attention were furnished by the defendant at its expense and were necessitated by the occupational disease from which she was suffering. In addition, the defendant sent the plaintiff on a trip to Bermuda and paid for it. In September, 1930, she was found negative for radioactivity, and in 1931 she was pronounced cured.

After terminating her employment with the defendant on March 26, 1931, the plaintiff was employed by another firm until February, 1934. While in its employ, she was not exposed to radium or radioactive substances. Thereafter, she was married and since then has not been regularly employed. She was exposed to radium or radioactive substances only while she was employed by the defendant. The plaintiff submitted no evidence indicating whether or not she was incapacitated for seven or more days from work of all descriptions in the period from Septembr, 1928, through March 26, 1931. It was agreed, however, that she was paid for the time lost from her employment during that period due to the occupational disease. In the fall of 1928, the plaintiff knew that she was suffering from radum poisoning owing to her employment by the defendant. She confirmed this in April, 1929, and again in February, 1930, when she read and copied medical reports made by Dr. Flinn. Although she knew that she was suffering from the occupational disease and that the medical attention furnished by the defendant was necessitated by the disease, she did not, within one year from the date on which she first had that knowledge, file written notice of her claim for compensation with the defendant and the compensation commissioner.

The plaintiff's present difficulty and claim arose in the winter of 1940-1941, when she began to have pain in her left shoulder. In September, 1941, at the expense of the defendant or its insurer, the plaintiff went to Dr. Flinn in New York for another examination. He prescribed a course of treament for her which brought on malnutrition and had to be discontinued within three weeks. She was then and thereafter treated and examined by many physicians. Dr. Robley D. Evans of Cambridge, Massachusetts, made computations, tests and gamma-ray runs in his laboratory and examined x-rays. He found 'a very small amount of radium but * * * that is sufficient to cause body lesions in the course of ten or fifteen years.' The difficulty with the plaintiff's left shoulder and arm was causally traceable to the radium poisoning from which she suffered as a result of her employment by the defendant and the residuals thereof. The condition has persisted and increased. She has suffered, also, from some damage to her right jaw. Although there may be some doubt as to whether the extraction of many of her teeth was made necessary by the occupational disease, she has a condition in both shoulders, though more marked in the left shoulder and arm, and in her right jaw which is causally traceable to the effects of the radium poisoning.

The plaintiff did not file with the commissioner a written request for a hearing upon a claim for occupational disease until August 6, 1941. Thereafter, the claim was assigned for a hearing. Various conferences and postponements followed, and the matter was heard by the commissioner on July 30, 1945, and July 16, 1951. On October 6, 1951, the commissioner filed a finding and award dismissing the plaintiff's claim. On October 15, 1951, she appealed to the Superior Court. Thereafter, the parties negotiated for a settlement without success, and on July 13, 1954, filed a stipulation, containing additional testimony of the plaintiff, which was made a part of the record and considered by the commissioner. On August 11, 1954, he confirmed the finding and award filed October 6, 1951. His decision was based upon the plaintiff's failure to file a written notice of her claim for compensation, or a written request for a hearing, within one year after the first manifestation of the disease, or while she was still employed by the defendant or within three years after leaving its employment, as was required by chapter 307, § 5, of the Public Acts of 1927. ¹

As previously stated, the first manifestation to the plaintiff that she was suffering from radium poisoning, the occupational disease, was in the fall of 1928. She does not claim that she gave written notice or filed a request for a hearing prior to August 6, 1941. She contends that the defendant knew of her condition between 1928 and the date in 1931 when she was pronounced 'cured' and that the statute requiring notice was suspended until 1941, when she learned that she was then suffering from the occupational disease. She claims, also, that since the commissioner did not find that she had been incapacitated between 1928 and 1931 for a period of more than seven days, she had not then suffered a compensable injury. General Statutes, Rev.1918, § 5348, as amended, Public Acts 1919, c. 142, § 5; Public Acts 1929, c. 242, § 1. She further maintains that, since written notice was required only for a compensable injury and she has not sustained such an injury, she was not required to give notice of her claim for compensation within the period of time prescribed by the statute.

When the plaintiff left the employ of the defendant on March 26, 1931, the pertinent provisions of § 5 of chapter 307 of the 1927 Public Acts were contained in § 5245 of the Revision of 1930. In Rossi v. Thomas F. Jackson Co., 120 Conn. 456, 181 A. 539, we discussed the case of Bremner v. Marc Eidlitz & Son, Inc., 118 Conn. 666, 174 A. 172. We said, 120 Conn. at page 462, 181 A. at page 541: 'That case, unlike the present one, was controlled by General Statutes, Rev.1930, § 5245, which provided that the limitation of one year should run from 'the date of the accident or from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury,' and we held that the word 'manifestation' as there used was intended to refer to the time when the symptom plainly appeared, and not when it was merely doubtful or uncertain, and that not only must the symptom itself plainly appear, but it must be recognizable by the claimant himself as a reasonable man or by some one whose knowledge could be imputed to him, as a symptom of...