Feldman v. Braunstein

The opinion of the court was delivered by Swayze, J.

This is a case under the Workmen’s Compensation act. The petitioner received a very serious injury in-the eye. The judge found that the injury was temporary in character if an operation was performed, but that if an operation was not performed the injury was permanent and ■amounted to ninety per cent, of the loss of an eye. He, there-} fore, as he said, in order to allow the petitioner to undergo1} an operation, determined that the injury was temporary! and that the petitioner was entitled to receive compensation,}' for his injury during such disability or until a further appli-j cation was made, not to exceed three hundred weeks. Hnder" the statute the compensation for the loss of an eye is limited to pay for one hundred weeks. I think the learned- trial judge erred in basing his award of compensation upon the theory of a temporary disability, when, as he himself found, the disability was permanent unless there was an operation. Whether the petitioner would submit to an operation rested i on his will alone, and he had nothing to gain pecuniarily by \ taking the risk that necessarily attends all operations. If it succeeded his weekly compensation ’would stop. If it failed, his injury would be permanent and he would be entitled to compensation for one hundred weeks only instead of for three hundred. It is clear that the legislature never meant to put the control in the hands of one party alone. It is for the court, under the statute, to determine the com-], pensation and the court can act only on the facts before itr\ not upon the uncertain possibilities of the future. The proper course was to deal with the case exactly as it stood at the time, that is, a case of permanent disability, and to allow compensation for one hundred weeks. If the petitioner then *22 chose to submit to an operation, and was cured, the extent of the intervening temporary disability would be known and the weekly compensation could be terminated upon application to the court for a modification of the order as the statute authorizes. If the, operation proved a failure the award for permanent disability would stand.

I think it unnecessary to deal with the technical question raised with reference to the judgment. The trial judge did •not file his determination until after the writ of certiorari was allowed; the dismissal of the writ on that ground would merely result in a new writ. As to the costs the action of the trial judge was authorized by the statute.