Bowne v. Stamford Rolling Mills, Co. , 95 Conn. 295 ( 1920 )

The defendants, while in form appealing from the supplemental modifying order of award of April 20th, 1920, seek a review of the original award made February 13th, 1917. To this review, for the direct purpose of having the terms of the original award set aside, they are not entitled at this distance of time subsequent to its having been made. General Statutes, § 5366. It does not follow, however, that the terms of the first award may not be and ought not to be taken into consideration when a hearing is being had and a determination made upon a reopening of the matter to determine whether or not changed conditions do not call for a modification of the award already made, in order that full and exact justice under the law may be done. The aim of our remedial workmen's compensation legislation is to accomplish that result in so far as is reasonably possible, and its informal machinery and procedure is arranged with that end in view. Hence the fixed and final quality which characterizes judgments in civil actions is not attached to awards of compensation, and the power of modification to meet new conditions as they arise is expressly conferred upon the compensation officials. General Statutes, § 5355;Saddlemire v. American Bridge Co., 94 Conn. 618,110 A. 63. Therefore it is, that upon every application where a modification of an award by an increase of its amount or an additional one is sought, regard must be had to its terms to determine whether or not the existing circumstances and conditions call for such modification in justice and right, and if so, to what extent.

It is by no means easy to understand the exact meaning and purport of the award of February, 1917, and the reasons which prompted it. The plaintiff had then suffered the loss of four toes and one half of the great toe of his left foot, and as far as appears no other injury separately compensable. His foot minus the toes remained with him and continued to for seventeen months. Notwithstanding these facts he was awarded compensation at the rate of $8.40 per week, being one half of the average amount of his weekly wages prior to receipt of his injury, for seventy-one weeks, in strict accord with the specific provision of statute in such case (General Statutes, § 5352), and, in addition, a further compensation at the same rate for not to exceed one hundred and thirty weeks, stated in the award to be the number of weeks allowed for the loss of one foot at or above the ankle. In fact the statutory period prescribed for the payment of the weekly payment compensation in the case of the loss of one foot at or above the ankle is one hundred and thirty weeks, neither more nor less. The language of the award, which states that the one hundred and thirty-week additional award was made for disability, the fact that it was made for a maximum and not a definite term of one hundred and thirty weeks, and the reference in it to its period as being that of the number of weeks allowed for the loss of one foot at or above the ankle, import into it elements of uncertainty as to its meaning and purport. But that matter is perhaps one of no great present importance.

Certain it is that an award was made for a substantial sum in excess of that prescribed by statute for the compensable injuries the plaintiff had then suffered, and that the excess thus awarded, as subsequently fully paid, strictly conformed to that prescribed for the loss of a foot at the ankle such as this plaintiff later suffered. If that extra compensation was awarded for disability attendant upon the loss of the toes, it was improperly awarded, since the seventy-one weeks' compensation fixed by the statute and awarded was exclusive. It is by statute prescribed in lieu of all other compensation for the consequences of that particular loss. General Statutes, § 5352; Kramer v. Sargent Co., 93 Conn. 26,104 A. 490. If, on the other hand, it was made with prophetic vision that the foot would be lost at some time in the future, it would appear and must have appeared to the commissioner upon the supplemental hearing, who was aware that the one hundred and thirty-week award had been fully satisfied, that the plaintiff had received the full compensation permitted by law for the loss of his foot, in addition to an award of the full permissible compensation for the prior loss of his toes.

In either event the commissioner, in examining the award he was being asked to modify, would have seen that the plaintiff, who was seeking additional compensation subsequent to the amputation of his foot, had already had, although perhaps erroneously, an award or awards for as large a sum or sums as the statutes permitted, and that he was not, in justice or right. entitled to further compensation. Furthermore, additional award was made, as the commissioner expressly states, for incapacity following the amputation. Compensation for that incapacity following, as it did, the loss of the foot and by reason of that loss, is included in that given for the loss of the member and is not separable from it. Kramer v. Sargent Co., 93 Conn. 26,104 A. 490.

The Superior Court is advised to vacate the supplemental award of the commissioner.

In this opinion the other judges concurred.