Rainey v. Tunnel Coal Co.

Beach, J. The ruling of the Superior Court, that compensation should have been denied because the plaintiff’s condition was due to his own neglect to accept or provide medical service until about two weeks after the injury, is erroneous, for the reason that the statute itself provides that the penalty for such neglect shall be a suspension of all right of compensation “ during such refusal or failure.” General Statutes, § 5347. Possibly an employee’s refusal to accept or failure to provide medical treatment, might be carried to such an extent as to amount to wilful and serious misconduct, which, by analogy with § 5341, would justify a denial of any compensation whatever; but this is not such a case. Since the compensation award began as of January 13th, 1918, more than two weeks after the injury, and therefore after the plaintiff first consulted a physician, the award would be unobjectionable, even if the appeal record were in such form as to make it possible for us to reject the Commissioner’s conclusion that the plaintiff’s conduct was reasonable and to adopt the contrary conclusion emphatically expressed in the memorandum of decision filed by the Superior Court. *93 It is apparent from the memorandum that the trial court reached its conclusion that the plaintiff’s conduct was unreasonable and negligent, by independently weighing the evidence before the Commissioner, as contained in a certified transcript accompanying the appeal. We cannot follow the court into that field of inquiry, because the findings of subsidiary facts on which the Commissioner based his conclusion that the plaintiff’s conduct was reasonable, stand uncorrected on the record. That being so, they furnish the only bases of facts for testing the correctness of his conclusions, either in the Superior Court or in this court; and so tested, his conclusion is unquestionably sound. It may also be observed that there was no occasion for a certified transcript of the evidence on the appeal to the Superior Court, because none of the reasons of appeal asked for the correction of any specific finding of a subsidiary fact. The Superior Court may, by an order in the nature of writ of certiorari, require the whole or any part of the transcript of evidence to be certified up and make it a part of the appeal record, whenever it appears necessary to do so in order to protect the substantial rights of parties not represented by counsel, but ordinarily no part of the evidence before the Commissioner , should be certified to the Superior Court unless the reasons of appeal ask for the correction or omission of some specific finding as to a subsidiary fact, or the addition of a material fact not found. The first and second reasons of appeal on this record, which allege that “the evidence was insufficient to warrant” the Commissioner in finding (a) that the injury arose out of and in the course of his employment, and (b) that as a result of the injury the claimant was incapacitated as found, do not present any assignable reasons of appeal. They simply invite the Superior Court to ignore the Commissioner’s findings *94 of subsidiary facts and to retry the ultimate issues upon an independent examination of a transcript of the evidence before the Commissioner. We have repeatedly held that this cannot be done. “The court cannot review conclusions of facts made by a Commissioner which merely concern the weight of evidence and the credibility of witnesses.” Powers v. Hotel Bond Co., 89 Conn. 143, 153, 93 Atl. 245. “The Superior Court cannot on appeal retry the facts.” Kennerson v. Thames Towboat Co., 89 Conn. 367, 370, 94 Atl. 372. “The power of the Superior Court in the correction of a finding of the Compensation Commissioner is analogous to, and its method of correcting the finding similar to, the power and method of this court in correcting the findings of the Superior Court.” Thompson v. Twiss, 90 Conn. 444, 446, 97 Atl. 328. “The trial court does not retry the facts. It decides the appeal upon the finding as made by the Commissioner, unless the appeal assigns, as error, the finding or omission to find any facts, and the court finds that facts have been found or omitted which, if found, in accordance with the evidence, would affect the result. • The right of the trial court to correct the finding of the Commissioner is similar to that exercised by us upon a proper appeal over the finding of a trial court.” Swanson v. Latham, 92 Conn. 87, 90, 101 Atl. 492. The reference in Blanton v. Wheeler & Howes Co., 91 Conn. 226, 99 Atl. 494, to the introduction of evidence in the Superior Cotut, must be understood as restricted to evidence offered for the purpose of correcting the appeal record so as to make it present the questions which the appellant desires to have reviewed by the Superior Court. There is error, and the cause is remanded with direction to enter a judgment dismissing the appeal. In this opinion the other judges, concurred.