Bethlehem Steel Co. v. Industrial Accident Commission

NOURSE, P. J.

Petitioner seeks to annul an award of compensation for injuries claimed for exacerbation of a preexisting hernia condition, and to annul a separate award for weekly compensation for an indefinite period.

On December 15, 1941, one Lemons was employed by petitioner as a shipfitter’s helper following a physical examination which disclosed incipient hernias on both sides. On January 6, 1942, the employee left his place of employment in the hold of a ship and as he passed through a man-hole to reach the deck he claimed to have suffered pain. He was given an immediate examination by a reputable physician, who testified that his condition was the same as when first employed. On March 9, 1942, following another examination, the hernia was surgically treated.

The evidence upon which the award of compensation was based was in direct conflict. The applicant was his own

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witness and gave testimony which was controverted by the expert testimony of the physician who was in regular attendance upon the patient. The commission elected to accept the testimony of the applicant, and that puts an end to the controversy here.

As to the award of indefinite weekly compensation for unemployment there is no conflict. The undisputed evidence shows that the applicant was physically able to perform the light work of a shipfitter’s helper, which was his usual occupation. The applicant testified that he was able and ready'to go back to work at the time of the hearing. The award seems to be based upon the theory that there was no direct evidence that a specific job was open to him, and that the burden of such showing was upon the employer.

The respondents suggest that the “odd lot” doctrine might be followed to sustain this position of the award. This doctrine is not applicable here because it rests upon a showing that the injured employee is only fitted to do odd jobs, or special work, not generally available. Where, as here, the injured employee is fully recovered from his injury and is able to do work of a general nature of the same kind in which he had been habitually employed there is no room for the doctrine which the courts have established for the benefit of those whose injuries have left them physically handicapped and unable to continue in their customary employment. But it is not the purpose of the Workmen’s Compensation Act to provide general insurance or compensation for those who are unemployed through no fault of their own. Such benefits are paid under the Unemployment Insurance Act. (Deering’s Gen. Laws, Act No. 8780d.)