Storms v. New Departure Manufacturing Co. , 97 Conn. 332 ( 1922 )

On July 5th, 1919, Clare Storms was awarded weekly compensation from the defendants for a period of 312 weeks, as a child wholly dependent in fact upon a deceased father, who died on April 20th, 1919, as the result of an injury arising out of and in the course of his employment.

In April, 1921, the defendants, under § 5355,^* applied to the Commissioner for a modification of the award, for the reasons above stated. The Commissioner, upon due hearing, found that Clare Storms was now over eighteen years of age, was married to Warren F. Harris, and that, because of the marriage of Clare Storms subsequent to the award, and of the degree of support received from her husband, she was now dependent for her support upon the compensation awarded her, to the extent of only $4.25 per week to maintain herself in her class and position in life. The Commissioner refused, however, to modify the award to conform to her present degree of dependency, andpro forma reaffirmed the award.

Under the provisions of § 16 of Chapter 142 of the Public Acts of 1919, the matter then came before the Superior Court as though an appeal had been taken, and was duly reserved for the advice of this court.

The matter for decision may be stated as follows: Is it the duty of the Commissioner, under § 5355, to modify the award to the daughter based on dependency in fact, as the facts existed at the time of injury, so as to make it accord with the facts as to dependency as they may exist at a later time? General Statutes, § 5355, specifically answers the inquiry in the affirmative. This section reads in part as follows: "Any award of . . . compensation . . . shall be subject to modification upon the request of either party . . . whenever it shall appear to the compensation commissioner . . . that the measure of dependence, on account of which the compensation is paid, has changed. . . ." In Grabowski v. Miskell, 97 Conn. 76, 82, 83,115 A. 691, we construed § 5355 as follows: "The Commissioner, under this statute, has power at any time to modify the voluntary agreement or award whenever it shall appear to him . . . that the incapacity of the injured employee has increased, decreased or ceased, or that the measure of dependence, on account of which the compensation is paid, has changed. This power continues so long as the agreement or award continues." The original award is not a final judgment. Saddlemire v. American Bridge Co., 94 Conn. 618, 626,110 A. 63. In that case we said: "The defendant attempts to liken the award to the judgment of a court. . . . The award is the creation of statute; it is subject to modification upon the grounds specified in the statute. There is nothing about it which has the finality of a judgment."

The plaintiff, in addition, claims, in effect, that since the estate of the employee who died as the result of an injury arising out of and in the course of his employment, is precluded by § 5341 from attempting to recover damages for his death, the reasonable construction of § 5355, in the light of the entire Act, is that it relates exclusively to a modification of an award to an injured employee, and not to an award to his dependents upon his death, and that the modification in the "measure of dependence," referred to in § 5355, refers only to such a change in the case of an injured employee who is receiving compensation. Such a restricted construction cannot reasonably be put upon this statute, without ignoring its explicit terms and the two decisions of this court to which we have referred.

The Superior Court is advised that under the facts found the Commissioner should have reopened the original award to Clare Storms and modified it to conform to the measure of her dependence which he found to exist; and is advised to render judgment accordingly.

In this opinion the other judges concurred.