Walsh v. A. Waldron & Sons

• Decision Date: 27 January 1931
• Citation: 153 A. 298,112 Conn. 579
• Parties: WALSH v. A. WALDRON & SONS.
• Court: Connecticut Supreme Court

153 A. 298

112 Conn. 579

WALSH v. A. WALDRON & SONS.

Supreme Court of Errors of Connecticut.

January 27, 1931

Appeal from Superior Court, Fairfield County; Frederick M. Peasley Judge.

Proceeding under the Workmen's Compensation Act by James Walsh claimant, opposed by A. Waldron & Sons, employer, to modify a voluntary agreement to pay compensation. From a finding and award of the Compensation Commissioner, an appeal by the employer was brought to and reserved by the superior court for the advice of the Supreme Court of Errors.

Superior court advised that appeal should be sustained.

William H. Comley and J. Kenneth Bradley, both of Bridgeport and John J. Cuneo, of South Norwalk, for appellant.

Nehemiah Candee and John T. Dwyer, both of South Norwalk, for appellee.

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

HAINES, J.

While in the employ of the defendants on April 30, 1926, the plaintiff's right eye was injured, causing a complete loss of vision in that eye. He was in a hospital two weeks and incapacitated for work until early in September, 1926, when he returned to work with the defendants for two months and then entered the employ of another firm and worked there until November, 1929. In October, 1927, the left eye became affected, and in an endeavor to save the vision of that eye, the right eye was removed. The condition grew worse and the plaintiff was obliged to cease work in November, 1929. Due to sympathetic ophthalmia resulting from the injury to the right eye on April 30, 1926, the plaintiff's vision in the left eye has been reduced to less than one-tenth normal vision with glasses, and he is thus totally incapacitated within the meaning of our act. The contract of employment was subject to the provisions of the act, but the defendants had never complied with section 5369 (Rev. 1918), which requires that the employer shall file proof of financial ability to meet necessary payments under the act, or insure his liability. Shortly after the accident, the plaintiff and his wife had many conferences with the defendants concerning the payment of the compensation and expenses imposed by the act, and were assured and promised by the latter that although they had never taken out compensation insurance, they would make the payments required by the act direct to the claimant " the same as required by the Compensation Act." This voluntary agreement between the parties was not reported in writing or otherwise to the commissioner by the employer as the statute required him to do. General Statutes, § 5361. The compensation employer as agreed, up to the time the employee went back to work, and the employer required by the act was in fact paid by the procured the signature of the employee to the following paper:

" Oct. 11, 1926.

" Having received to my full satisfaction, one dollar and other considerations, from A. Waldron & Son as compensation for total disability and as final award for loss of sight in right eye, I hereby release A. Waldron & Son from any further claim whatsoever from above date.

" [Signed] James H. Walsh.

" Witnesses: Leslie W. Gorhan

" Edward E. Gorhan."

On February 4, 1930, counsel for the plaintiff notified the defendants by registered mail of the later results of the accident and the probability that the plaintiff would also lose the use of the left eye, and that the commissioner had been asked to modify the voluntary agreement under the provisions of General Statutes, § 5355. The paper dated October 11, 1926, was submitted to the commissioner and a hearing was held on April 3, 1930, the voluntary agreement was modified, and additional compensation awarded to cover the disability caused by the injury to the left eye. The respondent appealed.

The ground of the appeal is twofold. It is contended, first, that the claimant had never made a claim for compensation in accordance with the requirements of the statute, section 5360, and that therefore the matter was never within the jurisdiction of the commissioner; and, second, that no voluntary agreement of the parties in the form prescribed by the statute was before the commissioner, and the latter was therefore without jurisdiction to make an award, and there was no statutory voluntary agreement for him to modify.

While both parties to the contract of employment were subject to the provisions of our Compensation Act, the liability of the employer-respondent to the employee-claimant for compensation for the results of the injury did not arise until certain statutory requirements had been thereafter complied with. Two of these requirements were notice of the injury and notice of claim for compensation. The relation of the parties was contractual and their respective rights and obligations arose from the terms of that contract. The provisions of the Compensation Act, by the presumed acceptance thereof by the parties, became part of the contract. It is thus provided that after receiving an injury, the employee is required to notify the employer of that fact, and if the employer can show that such notice has not been given him in a given case, any subsequent award to the employee may be reduced by the commissioner to the extent that the employer has been prejudiced by that failure of notice. General Statutes, § 5347. The facts disclosed in the present record make it abundantly clear that, whatever the employer could have shown as to the lack of the statutory notice of the injury, he had full notice in fact and could not have been prejudiced. Further consideration of this phase of the case is unnecessary.

The employee is also required to serve upon the employer, and upon the commissioner as well, within a year from the date of the accident, a written notice of his claim for compensation stating in simple language the date, place, and nature of the injury and other details. General Statutes, §§ 5360, 5343. The claimant did not comply with the terms of this requirement. The reasons therefore, as we read them in this record, do not reflect credit upon the employer, whose desire to keep the matter from the commissioner's attention led him to ignore several of the requirements imposed upon him by the statute. He made no provision, by insurance or otherwise, to meet his obligation for compensation under the statute, and he made no reports whatever to the commissioner, but instead went directly to the claimant and promised him that he would pay direct whatever...