O'Brien v. Wise Upson Co., Inc. , 108 Conn. 309 ( 1928 )

Until the amendment in the Public Acts of 1927, Chapter 307, § 4, the injury hernia was compensable in the same manner and upon the same conditions as any other injury. Prior to this Act, as now, cases of hernia had to be proven to have arisen out of and in the course of the employment of the employee. As we have interpreted and applied these terms that burden was a heavy one upon the employee, but a just one, and a very effective protection against unjust claims. Neither the commissioners nor the Superior Court judges have been subject to criticism for too readily accepting the employees' claim as to the occurrence which produced the hernia. The entire administration of this law has exhibited the fairness and good judgment of the officials charged with this difficult duty. It is, however, a fact that owing to the nature of the injury hernia, and its onset, it was difficult for the employer to defend against claims of this character because of the time elapsing between the injury and the notice given him of it. True, the notice had to be given forthwith, but this meant in our law, within a reasonable time, and on the failure to give the notice the commissioner might make an award reducing it proportionately to any prejudice sustained by the employer. The amendment provides that the notice of this injury should be given within two weeks of the accident. Herniae, prior to the amendment, were compensable whether arising from accident, disease or otherwise, and an evident purpose of this amendment was to limit recovery to cases arising out of accident, and to exclude cases of herniae where the claimant had had a pre-existing hernia. It would seem that the rights of employers under these provisions would be amply protected against unjust claims. Certain it is that no other form of injury which is compensable under our Act is restricted to so great a degree as the injury resulting in a hernia when subjected to these conditions.

The amendment adds one more condition required to be proved by the employee before he can recover, viz., "that inability to work immediately followed such accident." The proper construction to be given to this language constitutes the basis of this appeal. The opinion of my associates does not expressly construe the term "inability to work," but says its meaning is too plain to be misunderstood. But it subsequently says "that the meaning of the whole phrase [inability to work immediately followed such accident] is that the employee is unable to continue the work upon which he was engaged at the time of the accident — that the injury was such as to compel the employee to quit work at once." Under this construction inability to work can only mean a complete inability (that is, a complete incapacity) to work at the vocation the employee was pursuing. As a consequence of the construction accorded this language, the claimant carpenter is denied the recovery of an honest claim for an honest hernia because he continued at his work for a week after the strain which then resulted in the hernia. Counsel for the employer and the insured in his brief says: "Considered . . . from a physiological viewpoint a hernia . . . by an accident does not necessarily cause an instantaneous prostration and would not in some cases cause any inability to work. Considering, however, the evident intent and purpose of the legislature from the text of the amendment itself, we believe it apparent that only such herniae as cause instantaneous disability are compensable." "The provisions," he continues, "may seem drastic and too severe in certain cases." This understates the situation which must result. The limitation of this condition to cases of instantaneous prostration necessarily excludes all but a comparatively small number of herniae injuries, for total incapacity does not usually follow in most herniae injuries. If this language limits recovery to cases of instantaneous prostration, then the denial of compensation to this claimant is the necessary conclusion.

It is well to have before us the facts found by the commissioner. The hernia suffered by this claimant did arise out of and in the course of his employment; he did not have a pre-existing hernia, and he did give the required notice within the two weeks. The representative of the insurer and employer candidly states that which is obvious, that the restriction of compensable herniae to those where the total incapacity is instantaneous is too drastic and severe in some cases. The commissioner, who denied compensation, said: "It is unfortunate that an honest claimant such as this man, who undoubtedly did sustain the hernia from his work, should not receive compensation." The amendment so construed overthrows the primary purpose behind our own and every other Compensation Act. It would exclude from the benefit of the Act injuries which arose out of and in the course of the employment. Yet we held in Powers v. Hotel Bond Co.,89 Conn. 143, 146, 93 A. 245: Our Act "accepts, as an inevitable condition of industry, the happening of accident, and charges its cost to the industry. It imposes upon an employer, presumably, his share of a common loss in a common industry." The injury to this claimant was one of the very injuries for the compensation of which our Compensation Act was enacted. We should not assume, unless the construction of this condition plainly compels it, that the General Assembly intended to exclude such herniae injuries from our Act. Traumatic herniae are the result of a direct blow or force and so infrequent, my associates say correctly, as to be negligible. These are not the herniae with which this Act is principally concerned. No one has claimed that only traumatic herniae are intended by the language of this condition. Obviously it refers, and was intended to refer, to that large class of herniae, often caused by a strain or wrench, and which my associates denominate as the "hernia of effort." Herniae of this class rarely produce total incapacity, that is, instantaneous prostration, or the instantaneous incapacity to work, or the incapacity to work "presently or without any substantial interval of time elapsing." Many adjudicated cases are found where the incapacity from the hernia did not result instantaneously, or "presently or without any substantial interval of time elapsing." If the construction adopted by my associates obtains, the majority of herniae of this class will be excluded from compensation.

The amendment contemplates compensation for herniae through accident, yet the construction reached in the majority opinion holds that the General Assembly intended to enact a statute which gave the appearance of granting compensation for accidental herniae, but, in effect, denied compensation for most herniae injuries of this class. With this construction we have an amendment whose provisions, it is admitted, were agreed to by the representatives of both the employer and the employee, which intentionally excluded from the Act the large majority of cases of herniae of effort which arose out of and in the course of the employment. Honest claims for herniae are taken out of the Act, while the legislature leaves in the Act injuries resulting from a strain of the back, or side, or shoulder, whose injurious consequences may develop within a week or a month of the occurrence which caused the strain.

I am unwilling to believe that the employers intended to impose upon their employees a piece of legislation which purported to give compensation for injuries resulting in hernia, but in fact excluded from its benefits the larger number of the "herniae of effort." I am unwilling to believe that they intended to exclude all "herniae of effort" except those cases where complete inability to work immediately followed the accident. Nor am I ready to believe that the representative of the employees could intentionally and understandingly have agreed to a provision which by its terms would deprive of compensation, thereafter, most employees who might subsequently suffer a hernia injury which arose out of and in the course of their employment. It is not conceivable that employees would knowingly and voluntarily give up that which was won by them as a result of a long and hard struggle.

Furthermore, we ought not to assume that the General Assembly enacted legislation with such purpose, for it must be presumed that they knew that loss from injuries of this character, unless charged to industry, ultimately fall upon society. Had the General Assembly intended to exclude from the operation of the compensation law "herniae of effort," it could have accomplished this by inserting in this amendment a provision which was formerly part of the accident insurance policy, "provided always that benefit under this certificate shall not extend to hernia." My associates say: "The only question raised by the appeal from the finding of the commissioner and presented upon this reservation is whether the commissioner erred in holding that, because the plaintiff continued to work for a full week after the accident, his inability to work did not immediately follow the accident and he was not therefore entitled to compensation under the section of the statute above quoted." That is a mistaken reading of the appeal. The third reason of the appeal raises the question of instantaneous incapacity or prostration which has been discussed. While the question, whether the claimant's inability to work immediately followed the accident, is not the sole question raised by the appeal, it is an important question for determination. "Immediately" in this connection, my associates hold, does not mean instantaneously, but "presently or without any substantial interval of time." I agree that it does not mean instantaneously. Subsequently in the opinion this phrase is construed to mean that the injury must be such as compelled the employee to quit work at once, which practically gives to immediately the meaning of instantaneously. If "presently or without any substantial interval of time" means, as the opinion in another part seems to hold, not in excess of a few hours, I cannot accept this meaning. Immediately is a relative term. It seldom is used in the sense of instantaneously, but is generally used, whether in contract or statute, with the meaning, within a reasonable time under the circumstances. We held in Lockwood v. Middlesex Mutual Assur. Co.,47 Conn. 553, 566, that "forthwith" and "immediately" were used in this sense when used in the giving of a notice of proof of loss under a fire insurance policy. And so far as we have had occasion to use this word in expressing time we have never departed from this use. Immediately as used in "immediately following an accident," does not have the meaning my associates attribute to it. There is nothing in the statute, nor in the Compensation Act, which would lead to the construction of "immediate" as "presently or without any substantial interval of time." In none of the States where they have special provisions affecting injuries resulting in herniae do we find a provision such as this requiring the proof of an instantaneous incapacity immediately following the accident. We do find in several, provision that the descent of the hernia shall immediately follow the strain or cause. Surely immediately as there used does not mean instantaneously, or presently, for this would not be the invariable physiological manifestation. In no State do we find indication that immediately is used in Compensation Acts in the sense of presently, without a substantial interval of time.

To give immediately the meaning my associates do, renders the statute an impracticable one, and inapplicable to the very cases which ought to fall within it. A construction leading to such ends is never adopted by a court unless the explicit language of the statute compels it. The requirement that a notice with full particulars of an accident be given within ten days from its occurrence, the court said, in Trippe v. ProvidentFund Society, 140 N.Y. 23, 26, 35 N.E. 316, "must be considered as inserted for some reasonable and practical purpose, and not with a view of defeating a recovery in case of loss by requiring the parties interested to do something manifestly impossible." The attitude of this court toward attempts to construe statutes with drastic rigidity is illustrated in an observation by CHIEF JUSTICE PRENTICE in Schmidt v. O. K.Baking Co., 90 Conn. 217, 222, 96 A. 963: "It is hard to believe that the General Assembly intended to cut off claimants, whatever the circumstances of their cases might be, quite so inexorably and by so short a limitation of time for the giving of notice."

Let me now take up the principal grounds upon which my associates base their opinion that "immediately" means presently or without any substantial interval of time. The contention that this is the legislative intent in this condition I have sufficiently met in giving my reasons for entertaining a differing conception of the legislative intent. Next, it is held that immediately as here used is an adverb of time, of that there can be no differing view, and that it cannot mean "within a reasonable time," since that can only refer to causation, to something done voluntarily by human agency. I confess my inability to understand this. May not a time for the taking effect of any form of contract, or any form of obligation, or of any duty imposed, be expressed in terms of time, as immediately? Examples where immediately is used in connection with an event, an obligation, or a duty, are often found in contracts and statutes, and such use is a part of our daily communication with each other. The construction accorded this word by my associates has not been made by any of the courts of the country except in their construction of one clause of an accident policy of insurance, and it is upon the construction of this clause my associates rely, and this I purpose considering later. So well understood is the meaning of immediately in the law as "within a reasonable time" that, when it is desired in contract or statute to express a definite time when a duty should be performed, an obligation accrue, or an event occur, the careful draftsman not infrequently provides for the period, as within a stated time, or from a named day, or from the time of the accident. Robinson v.Masonic Protective Asso., 87 Vt. 138, 88 A. 531;Thompson v. General Acc., F. L. Assur. Corp.,155 La. 31, 98 So. 746; Southern Surety Co. v. Penzel,164 Ark. 365, 261 S.W. 920. In the law "immediately" is almost uniformly regarded as meaning "within a reasonable time" unless the circumstances show that the parties intended it to mean otherwise. Why should the occasional and unusual legal meaning of immediate be adopted in construing this condition, when the result must be the exclusion from compensation of most of the cases of injuries from acquired herniae, or the herniae of effort, which were injuries happening to employees in the course of their employment and arising out of the risks of that employment? And why should it be held that our General Assembly intended such a result? Having disposed of immediately as not meaning "within a reasonable time," my associates say that the only other admissible construction would be that adopted in Kansas, "within such time as the processes of nature consume in bringing about disability as a result of the injury," and this would fix the date of disability in terms of causation rather than of time. This is the theory of those of the accident insurance cases in which my associates find the authority for their opinion. If a day certain is fixed for the consummation of an event, that is fixing a time. If an obligation continues until, or a duty begins when a vessel arrives, that is the fixation of time. If the incapacity results whenever nature brings this about, the time it occurs in is definitely fixed. If immediately in this connection means when disability occurs, this is time; the incapacity to work is when nature brings about the disability following the accident. There is, so far as I can see, no causation involved, only time. My reference to this construction is not intended as an acceptance of this meaning of immediately but an effort to show the fallacy of my associates' argument. The opinion of my associates presents their viewpoint probably as well as the conclusion they reach would admit of.

One other point in the opinion should have a careful examination. In reality the opinion largely rests upon it. The meaning of immediately in this amendment should be construed, my associates hold, in analogy to the construction accorded the clause in policies of accident insurance which limit liability to those injuries which "independently of all other causes immediately, wholly and continuously disable" the insured. In a number of these cases my associates find the construction of immediately to be not instantaneously, nor within a reasonable time, but "presently or without any substantial interval of time" and adopt their construction. There is this marked difference between the situation in the making of the policy and that in the making of this statute; the policy of the insurer was made by it and it had the right to make the terms of its policy and provide, if it chose, that its liability should begin at the moment of disability, while the compensation of the claimant for hernia was fixed in the public statute and recoverable upon his proof that his incapacity for work immediately followed the accident. The one is a private contract and its restrictions are made for the benefit of the insurer. The other is an amendment to a public statute, remedial in character, presumably enacted neither in the interest of the employer nor the insured, but in justice to each and to serve a State policy of high public concern. It was not the legislative purpose to place so severe restrictions upon the employee as practically to deprive him of compensation when suffering a hernia arising out of and in the course of his employment. We ought not to construe the statute as we would a private contract of this nature, for the intention of the insurer is concerned in his own interest, while that of the legislature is concerned for the public interest, and in justice to all affected by the statute. The provision in the policy was plain and uncontradictory. The provisions of the amendment are contradictory, construed as my associates construe them, since they provide for an impossibility — an incapacity for work, that is, an inability to work, which immediately follows an accident resulting in a hernia, when such disability seldom follows an accident, either instantaneously or presently. In this clause of the insurance policy the use of immediately in connection with "wholly and continuously disable" connotes the meaning of immediately to be instantly, for to wholly disable from accident means an instantaneous disablement.

An analysis of the cases cited by my associates would occupy too much space. Suffice to say, the disability which they determined did not occur immediately, that is, instantly, after the accident, but occurred in from two days to about three and one half months from the date of the accident. In the larger number of them the same result would have followed if immediately had been construed to mean within a reasonable time. A single word in a clause of this character in an accident policy should in any event be construed in connection with the entire clause of which it is a part. And in the light of the circumstances, and what would be a reasonable time, would necessarily be more limited than, for instance, in the clause providing for notice in case of loss under a fire policy. A study of these cases will show that in determining the meaning of "presently, or without any substantial interval of time elapsing," necessarily the circumstances of each case had to be weighed and practically the same mental processes pursued as are involved in determining whether the period was a reasonable time. The reasoning of these opinions rests upon the assertion found in Williams v. Preferred Mut. Acc. Asso., 91 Ga. 698,700, 17 S.E. 982, that the word with reference to an act done is perhaps in a reasonable time, "but . . . where this word refers to a consequence resulting from a physical cause independent of the will or control of the insured, it cannot, when manifestly used as a word of time, have any such meaning." I have already indicated my opinion of this distinction. It does not seem to me to exist.

I have also pointed out that the meaning of immediately connoted with "wholly and continuously disable" was instantly. So that these authorities do not seem a satisfactory basis to follow in our construction of this word in the clause under construction. Except for the Kansas decisions, my associates say, the courts have pretty uniformly held to the doctrine of the Georgia case from which we have quoted. This is not entirely accurate. We find the New Jersey court applying the Kansas doctrine in Booth v. United States Fidelity Guaranty Co. (N. J.) 130 A. 131, in a case where the insured fell on May 19th, 1924, and suffered a concussion of the brain, but continued at work until the following June, when he suffered an apoplexy. In Pennsylvania, immediately in this clause of an accident policy is held to mean a reasonable time. Ritter v. Preferred Masonic Acc. Asso., 185 Pa. 90,39 A. 1117. The same construction prevailed in Farner v.Massachusetts Mut. Acc. Asso., 219 Pa. 71,67 A. 928, a case where the injury from the bite of a dog kept increasing for two weeks or more when there resulted disability. In Brendon v. Traders TravelersAcc. Co., 84 App.Div. 530, 82 N.Y.S. 860, a physician strained his knee, the third day thereafter he became disabled, and for three weeks was in splints and in bed. Immediately in a substantially similar clause in an accident policy was held to mean within a reasonable time. Similar rulings were made in ContinentalCasualty Co. v. Matthis, 150 Ky. 477, 150 S.W. 507, where the assured was disabled for three days after the accident, and then permitted by his physician to go to work, but after three days became disabled, and in Rorabaugh v. Great Eastern CasualtyCo., 117 Wash. 7, 200 P. 587. In view of what has been said concerning the principle upon which the cases cited to this point are rested and the vital difference between an accident policy of insurance and a public statute, these authorities seem too insecure a foundation upon which to rely in so construing this amendment as to deprive the plaintiff employee of compensation.

The chairman of the Compensation Commissioners, Commissioner Williams, in the case of Armstrong v.Baker, reached the conclusion I have reached. His long and notable service entitles the views expressed in his memorandum to most careful consideration.

The construction which my associates feel compelled to give to this clause of the amendment does a grievous wrong to this plaintiff, and will deny compensation to the great majority of those who may hereafter suffer a hernia arising in the course of their employment and out of its risks or conditions. Such a result will make this clause of the amendment, while it stands, an inhuman feature of our statutes. The Compensation Act has been a highly remedial Act, benefiting employer and employee alike, and benefiting the public most of all. Its benefits to employees are not alone in the compensations its gives them for injuries suffered in their employment, nor in its making these a charge upon the industry, but perhaps the greatest benefits to them are in the vastly improved conditions under which they work, due to better building facilities, better safety protection, better sanitation, better health protection, and far better inspection and supervision, induced and carried out by employers as a consequence of the Compensation Act, first for their own self-interest, and later as a necessary part of wise business management, and as a part of the larger humanitarian policy of modern industry and business. The resulting industrial benefit has been seen in a lessened wastage of man power, in better workmen and in higher production.

The construction my associates give to this clause of the amendment now becomes the law of the State. Whether the employer, the insurer and my associates are right that the General Assembly intended compensation in cases of hernia where total disability or incapacity to work followed the accident either instantaneously or "presently or without any substantial interval of time elapsing," or I am right in assuming that this clause does not mean that, and that the General Assembly never knowingly reached such an inhuman conclusion, is not the important point for future consideration; the important point is whether this wrong shall be perpetuated. While this amendment stands the law must remain unchanged; it ought, in my judgment, in common fairness to employees, to be changed by legislation.

In this opinion HAINES, J., concurred.