The plaintiff was employed by The Collins Company from May, 1915, until January, 1923, as a wet grinder, and thereafter did other work for the same employer until January 6th, 1931, when he became disabled as the result of pneumoconiosis contracted while employed as a wet grinder. On March 20th, 1931, the compensation commissioner awarded the plaintiff weekly compensation of one half of his average weekly wages during the twenty-six weeks next preceding January, 1923. On December 8th, 1931, the case of Rousu v. Collins Co.,
The first reason of appeal was that the commissioner had no power to modify the previous award "by reason of a supposed error of law in the rendition thereof," and the overruling of this reason is assigned as error on the appeal to this court. The memorandum of decision shows that the Superior Court based its ruling upon Thompson v. Towle,
Standing by itself, Thompson v. Towle would justify modification of the award in the quite analogous situation presented in the instant case. However, a review of the decisions relating to the power of a compensation commissioner to modify an award or agreement — especially what we deem a true conception of *Page 4 the effect of subsequent decisions — leads to a different conclusion. The commissioner's power is derived from and depends upon § 5240 of the General Statutes under which it may be exercised whenever it shall appear to him (a) "that the incapacity of the injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed;" (b) "that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit [of the Compensation Act];" (c) "The commissioner shall also have the same power to open and modify an award as any court of the State has to open and modify a judgment of such court." The section further provides (d): "The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question."
In Fair v. Hartford Rubber Works Co. (1920)
The next case, Thompson v. Towle (1923), as we have noted, involved a mistake of law instead of fact and was clearly outside of the scope of remedies (a) and (b). No attempt was made to bring it under (c) which had been utilized in the two prior cases, but revision of the award was held to be authorized under provision (d) as within the retained jurisdiction of the commissioner over awards and agreements "for any proper action thereon" during the whole compensation period. The view was expressed that under this provision "after an award and during the whole compensable period applicable to the injury in question, the relation of the commissioner to the award is similar to that of a court to a judgment during the term at which it is rendered," and that "the only limitation upon a commissioner's power to open an award is that it must be `for any proper action thereon;'" it was held that a supplemental award allowing reimbursement for expenses, which had been denied in the original award because of the erroneous belief and ruling of the commissioner as to the legal effect of failure to give notice upon the recovery of such expenses, constituted "proper action" on the award within that provision (d) of the statute.
In Hayden v. Wallace Sons Mfg. Co. (1923)
Kurzaji v. Warner and Bowman (1927)
In view of this limitation, a reopening and modification based upon a mistake of law, as here, would not be permissible unless the control over its award for correction of errors of law, as distinguished from mistakes of fact, which a court possesses over its judgment only during the term in which it is rendered, is held to continue in the commissioner during the entire compensation period. Such an extension would be inconsistent with and subversive of the considerations which have actuated the generally recognized limitations of the powers of courts over their judgments.Hayden v. Wallace Sons Mfg. Co., supra, p. 187. As indicated in the Hayden case, under provision (d) of § 5240, the commissioner retains jurisdiction for "any proper action" under preceding provisions of the section only, and does not obtain power to reopen and modify an award upon other and different grounds than those previously prescribed. A reopening for a mistake of law being, as we have seen, beyond the power of court of equity over its judgments is not "proper action" by a commissioner whose powers are subject to a like restriction. Therefore, the commissioner was in error in reopening and modifying the award, and the Superior Court erred in affirming that action.
This conclusion renders superfluous a discussion of the other assignments of error. We merely add the observation that any injustice to the defendant which *Page 9 might appear to result from the denial of the motion is largely mitigated by the consideration that, it appears, an appeal to the Superior Court was taken by the defendant from the original award in which the same question was raised as in the case of Rousu against the same defendant, and might have been adjudicated by appeal to this court from the adverse decision or kept open under the appeal until settled by the decision in the Rousu case then pending.
There is error; the case is remanded to the Superior Court with direction to sustain the appeal on the ground herein indicated.
In this opinion the other judges concurred.