Armstrong v. Industrial Accident Commission

THOMPSON, J.

By this proceeding in

certiorari,

it is sought to annul the award of the respondent commission, allowing Edward A. Wellendorf compensation for an industrial injury.

The controlling question is whether the claim is barred by section 11 (c) of the Workmen’s Compensation, Insurance and Safety Act (Deering’s Gen. Laws, 1931, p. 2285), which section reads as follows:

“The payment of compensation, or any part thereof,

or agreement therefor, shall have the effect of extending the period within which proceedings for its collection may be commenced, six months from the date of the agreement or last payment of such compensation, or any part thereof, or the expiration of the period covered by any such payment; provided, however, that nothing contained in this section shall be construed to bar the right of any injured employee to institute proceedings for the collection of compensation within two hundred forty-five weeks after the date of the injury upon the grounds that the original injury has caused new and further disability; and the jurisdiction of the commission in such cases shall be a continuing jurisdiction at all times within such period. ’ ’

The facts essential to an understanding of the problem may be briefly stated as follows:

O'n November 11, 1931, the applicant, Edward A. Wellendorf, was working for the petitioner upon a circular power saw and, while so employed, his left hand came into contact with the teeth of the saw, and four distal phalanges were practically amputated, the stumps being jagged and lacerated. The injured man quit work at once and received medical attention, consisting of approximately fifteen treatments, ending about December 29, 1931. He returned to work February 11, 1932, for the same employer and at the same wages and, although conducting negotiations with his employer for a settlement (which were never concluded), he

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did not file claim for compensation until October 18, 1932, more than a year after the injury and more than six months after medical attention was last furnished him by his employer. The commission, however, found that the claim for permanent disability was not barred by the period of limitations prescribed by the act and assign as their reason the fact that disability was computed on the basis of 25 per cent for the amputation and 5 per cent for limitation of motion or stiffness, which developed in the joints subsequent to the injury. In other words, the respondent asserts that the applicant is brought within that provision of section 11 (c) above quoted which says, in effect, that nothing contained in the section “shall be construed to bar the right of any injured employee to institute proceedings for the collection of compensation within two hundred forty-five weeks after the date of the injury upon the grounds that the original injury has caused new and further disability; ...” We are in accord with this position. In other words, the limitation of motion is not an injury