Bongialatte v. H. Wales Lines Co.

Curtis, J. The plaintiff appeals from the award because the Commissioner did not allow him to recover his expenditure of $200 for reasonable and proper medical care, which was made by him before April 27th, 1921, and before his employer had notice or knowledge of his injury. The reasonable construction of § 5347 of the General Statutes, limits the penalty upon an employee for failure to give immediate notice of an injury to his employer, to such a reduction of the award of compensation as the Commissioner finds that the prejudice, if any, to the employer arising from such failure entitles him to. It does not deprive the employee of his right to have reasonable and competent medical aid at the expense of his employer. If, in the absence of an immediate notice to the employer of the injury, the latter fails to provide medical aid, through ignorance of the injury or otherwise, and the employee employs medical aid, the employer is required to reimburse the employee for such expenditure if the same is reasonable as to amount, and if the competency of the aid so employed is also reasonable, so that the employer is not prejudiced thereby. If the employer is prejudiced *551 by such an employment of medical aid by an employee who failed to give immediate notice of the injury to his employer, the Commissioner must reduce the award accordingly. Under the finding the employee employed reasonable and competent medical aid, and the employer was not prejudiced thereby. The plaintiff’s appeal, therefore, must be sustained. The defendants appeal from the award upon the ground that the Commissioner erred in allowing the plaintiff compensation for the entire incapacity caused by the injury. They claim that the Commissioner has found that the plaintiff had a prior disease and that the injury in question aggravated it, and that this aggravation of a prior disease caused a part of the disability, and that for such part of the disability the plaintiff was not entitled to compensation. This claim is based upon the portion of § 5341 of the General Statutes as amended by § 1 of Chapter 142 of the Public Acts of 1919, reading as follows: “If an injury arises out of and in the course of the employment it shall be no bar to a claim for compensation that it cannot be traced to a definite occurrence which can be located in point of time and place. Any disease, which is caused by an injury arising out of and in the course of the employment, shall be deemed to be a natural consequence of such injury, but in any case of aggravation of a disease existing prior to such injury, compensation shall be allowed only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributed to the injury.” This claim presents for decision the question whether the legislature, by its amendment of § 5341 in 1919, intended to completely overthrow the then established construction of our Compensation Act as set forth in Hartz v. Hartford Faience Co., 90 Conn. 539, 543, 97 Atl. 1020, and Saddlemire v. American Bridge Co., 94 *552 Conn. 618, 110 Atl. 63, to the effect that “ compensation is not made to depend upon the condition of health of the employee, or his freedom from liability to injury through constitutional weakness or latent tendency. . . 'It is the hazard of the employment acting upon the particular employee in his condition of health and not what that hazard would be if acting upon a healthy employee or upon an average employee.’ ” Our construction of the Compensation Act, as stated in these cases, has been the practically universal construction of similar Acts in other jurisdictions. It is not too much to say that a construction of the amended Act, as claimed by the defendants, if adopted, would deprive the entire Act of a large part of its remedial effect, and involve its administration in great uncertainty, confusion and indefiniteness. A consideration of the obvious purpose of the amendment of 1919 indicates that the legislature did not intend so drastic an impairment of the Act. The provision relied upon accompanies and is part of a remedial amendment to the Act, bringing occupational diseases within its provisions, and the reasonable interpretation of the provision in question, in view of its context, is that it refers only to cases involving occupational diseases. The Superior Court is advised to dismiss the appeal of the defendants and sustain the appeal of the plaintiff, and render judgment in accordance with this opinion. In this opinion Wheeler, C. J., Beach and Keeler, Js., concurred.