Opinion
No. 4249.
Argued January 5, 1954.
Decided January 29, 1954.
A claimant under the Workmen's Compensation Law (Laws 1947, c. 266, as amended) is not entitled to execution on an award by the Commissioner of Labor as provided by s. 9 where his employer has secured compensation to its employees by insurance in compliance with s. 8. Where an award for temporary total disability had originally been made to the claimant by the Labor Commissioner, proceedings brought in the Superior Court (Ib., s. 40) seeking a further award of benefits were properly remitted to the Commissioner (s. 38).
PETITION, under the Workmen's Compensation Law (Laws 1947, c. 266, as amended) to enforce an award by the Labor Commissioner for temporary total disability which resulted to the plaintiff following accidental injury to his shoulder on March 17, 1952, in the course of his employment by the named defendant. A total of $606.75 compensation was paid by the defendant Lumbermen's Mutual Casualty Company, its insurer, for the period ending September 15, 1952, when payments were stopped following receipt by the insurer of a certificate of the attending physician under date of September 12, 1952, stating that the plaintiff was then "strong enough . . . for all but the heaviest kinds of work" and that there was "no danger that ordinary use of the shoulder [would] injure it."
The petition sought execution "under section 9 of said statute for the . . . sums found due by the Commissioner," totaling $218.43 for nine weeks following September 15, 1952. It also sought an award of "full benefits due" the plaintiff. Dunbar Fuel Company, a former employer of the plaintiff, in whose employ he first suffered injury to his shoulder on November 27, 1950, and its insurer Massachusetts Bonding Insurance Company are also parties defendant.
The Trial Court, Wescott, J., ruled that section 9 of the Law was inapplicable, and found that the Labor Commissioner made an award after hearing on July 23, 1952, "but made a further ruling that after the plaintiff recovered from a certain operation a further determination could be made on the question of permanent partial disability." The Court further found, "this hearing has never been held and the findings of the Commissioner are therefore incomplete." The Court ruled that the "plaintiff has an adequate and proper remedy by petition to the Commissioner for further hearing," and dismissed the petition.
The plaintiff excepted generally to the findings, and rulings and decree "as being contrary to the law, the evidence and the weight of the evidence," and further excepted to the denial of his motion to set aside the decree. All questions of law raised by the exceptions were reserved and transferred by the Presiding Justice.
The "Report and Recommendations of the Labor Commissioner" under date of July 23, 1952, were as follows:
"Under date of November 27, 1950 Dunbar Fuel Co., Inc. reported an accident to Charles A. Cassidy on that date for which he was paid compensation for a period of sixteen weeks and three days, having been discharged by the doctor as able to work on March 19, 1951. Although Mr. Cassidy continued to work from May 1951, his shoulder was not as good as prior to the injury. On March 17, 1952 Fellows and Son, Inc. reported that while he was emptying a box of buttings he injured the same shoulder, but had lost no-time on account of the accident. On June 3, 1952 a request was received on behalf of Mr. Cassidy from Attorneys John J. and Maurice Broderick for a hearing in these cases. Such hearing was held by the Labor Commissioner on July 10, 1952. At this hearing medical evidence was introduced that in May 1951 he had been discharged by the doctor as recovered from the original accident of November 1950.
"Having had a new accident on March 17, 1952 while employed at Fellows Son, Inc. when the shoulder felt as though it came out of joint but slipped back in again, he was examined on March 18, by Dr. Rix who found the shoulder in the socket at that time. At a subsequent visit however, it was determined the shoulder could easily be slipped part way out of the joint and then reduced, which indicated a partial dislocation of the shoulder. An operation for this condition was performed on April 29, 1952 by Dr. Rix. In view of the fact there was a definite new accident on March 17, 1952 the commissioner rules that compensation should be paid from the date disability began after this accident and would grant an extension of the medical provisions to cover medical from June 15, 1952 for ninety days.
"After Mr. Cassidy has fully recovered from the operation and it can be determined whether he has any permanent partial disability it is suggested the matter be reviewed to determine whether part of this permanent partial disability could be attributable to the accident of November 27, 1950 while employed by Dunbar Fuel Co., Inc."
Other facts appear in the opinion.
John J. Broderick and Maurice A. Broderick (Mr. Maurice A. Broderick orally), for the plaintiff.
Devine Millimet (Mr. Millimet orally), for the defendants Fellows Son, Inc. and Lumbermen's Mutual Casualty Company.
Wyman, Starr, Booth, Wadleigh Langdell for the defendants Dunbar Fuel Company and Massachusetts Bonding Insurance Company.
The ruling of the Trial Court that section 9 of the Workmen's Compensation Law relates to enforcement of orders of the Commissioner against an employer who has failed to comply with section 8 was correct. Under section 9 execution may be issued on an award by the Commissioner in favor of "an employee of such employer," and "such employer" refers back to the first sentence of the section relating to "employers . . . who fail to comply with the provisions of section 8" requiring security for compensation either by insurance or by proof of "financial ability to pay direct." Since the defendant Fellows Son, Inc. is insured as required by section 8, the provisions of section 9 do not apply, and the plaintiff is not entitled to execution on the award.
The plaintiff urges that although the statute furnishes no method for enforcing an order of the Labor Commissioner not based upon an agreement of the parties (cf. s. 34), the Superior Court as a court of equity should have afforded a remedy where the order of the Commissioner had never been modified or vacated. He further asserts that the Superior Court was without jurisdiction to make the "implied finding that the plaintiff had recovered . . . and that there should be a further hearing" before the Commissioner.
The failure of the Workmen's Compensation Law to provide a method of enforcing an award by the Commissioner appears to have resulted from amendment of provisions of the original bill that the Superior Court should enforce the decisions of an "industrial accident commission" proposed by the bill. See House Bill 35, s. 44 (1947 session); House Journal (1947 session) 966. Upon amendment, these provisions became section 40 of the present law, bearing the inappropriate title "General Powers of Commissioner of Labor," and providing that "questions . . . not settled by agreement of the parties . . . with the approval of the commissioner . . . shall be determined by the superior court," the decisions of which "shall be enforceable in the same manner as an equity decree."
No claim is made that the plaintiff's petition was an appeal from the Commissioner's award (s. 35). The Court's jurisdiction rested upon section 40, supra, since one question presented was whether a further award of "full benefits due" should be made. The plaintiff was properly remitted to proceedings before the Commissioner since the Commissioner made the original award. S. 38.
With respect to compensation for temporary total disability the plaintiff takes the position that an award had been made by the Commissioner in his favor, which he is entitled to enforce until it is modified or vacated. Cf. Eaton v. Eaton, 90 N.H. 4, 8. The fact is that although either party was free to seek a review of the award (s. 38), neither clearly did so. While, as the defendants point out, sections 21 and 23 of the Law provide that payments for temporary disability "shall not continue after the disability ends," there has been no judicial determination that the plaintiff's temporary disability has ended. In the usual case where an employer or his insurer claim that disability has ended, orderly procedure would dictate that the burden should be upon them to seek review by a suitable petition to the Commissioner or Court, as the case may be. S. 38, supra.
The special circumstances of this case, however, furnished some justification for the action taken by the insurer in suspending payments and warranted the finding of the Trial Court that the Commissioner's findings were incomplete, and its ruling that the plaintiff's remedy was by petition to the Commissioner for further hearing. The Commissioner's order while not self-limited in point of time, indicated upon its face that the matter should be reviewed after the plaintiff "has fully recovered from the operation," and that medical benefits would terminate on or about September 13, 1952. Under date of September 12, 1952, plaintiff's counsel requested the Commissioner for an extension of the period for medical benefits (s. 19), and on the same date the certificate of the attending physician was issued indicating that the plaintiff was able to return to work. On September 15, the insurer wrote the Commissioner suggesting that in view of the physician's certificate, payment of temporary total disability compensation beyond September 12 should not be required, and requesting the Commissioner to review "the file" with this in mind. On September 17, plaintiff's attorney wrote the Commissioner, sending a copy to the insurer, stating that the plaintiff would "go to work at the earliest opportunity, but it is not yet established what employers will hire him in his present condition," and concluding: "Since he has a permanent disability, I anticipate there may be need for further hearing on that issue." The Commissioner replied by letter dated October 2, stating that "unless you have some further medical evidence that the rehabilitation [by therapy treatment] is necessary I do not feel justified in granting an extension [of medical benefits] at this time," but giving no notice of any hearing on review. The exchange of correspondence did serve however to indicate a common understanding that a further hearing before the Commissioner was in order.
With this evidence before it, the Court, sitting in equity, committed no error in leaving the plaintiff to his remedy before the Commissioner. So far as the question of permanent disability was concerned the Court had no discretion to do otherwise, in view of the provisions of section 38 for an application for review to the Commissioner or the Court "whichever made the original award."
We are not prepared to suggest that no other course was open with respect to the order for compensation for temporary disability, even though no procedure for the enforcement of an award by the Commissioner is provided by the Law. But assuming that the Court had the power to enforce the award despite the absence of statutory procedure, no error can be predicated upon the course taken upon the evidence before it, in the face of the statutory provisions that payments on account of temporary disability should not continue after the disability had ended. Ss. 21, 23, supra. We see no basis for implication of a finding by the Court that the plaintiff had recovered. The Commissioner made no final award, but in effect retained jurisdiction of the original application, pending termination of temporary disability due to the operation. The question of the liability of Dunbar Fuel Company, Inc. was still before the Commissioner. This was recognized by the finding of the Court that "the findings of the Commissioner are . . . incomplete." The Court did not purport to make findings on the merits, and any rights which the plaintiff may have can be established before the Commissioner.
Exceptions overruled.
All concurred.