
    Nicola Moscatiello vs. Queen Dyeing Co.
    W. C. A. No. 1332.
    June 22, 1931.
   BAKER, P. J.

Heard on petition to review a final agreement.

The evidence shows that the petitioner was severely burned, more particularly on his left leg and right arm, while working for the defendant company early in December, 1930. He was treated at the hospital and eventually was discharged therefrom. He went back to work for the respondent the latter part of July, 1931, and did light work until early in October of the same year. In that month a final agreement was signed, which was approved as of November 23, 1931, and certain payments were made him for medical expenses and disability. He returned to work at his regular job in October, 1931, and continued doing that work until January 9, 1932. 1-Ie was then transferred to another position and worked there until March 1, 1932, when he was discharged.

The petitioner contends that by reason of the burns he is unable to work, that his leg and arm are weak, that the leg becomes swollen, and that it is difficult for him to do heavy work and to stand long on his feet. He also urges that he did not understand the effect of the final agreement which he signed. Two physicians testified on his behalf and said that they did not believe he was now able to work. They did not treat him but have each examined him once at a comparatively recent date.

The defendant urges very seriously that the facts themselves show that the petitioner is capable of work and that he has not sustained the burden of proof which the bringing of this petition casts upon him. A physician gave evidence for the defendant that in his judgment the petitioner could do any reasonably heavy labor. The evidence in regard to swelling of the petitioner’s foot was somewhat conflicting.

A consideration of the testimony presented leads the Court to believe that the petitioner is now capable of work. He appeared to the Court to be a rather ignorant and somewhat suspicious man but it is satisfied that he understood with reasonable certainty tbe papers be signed and tbe effect thereof. Tbe weight of tbe evidence would tend to show that they were explained to him.

For petitioner: Charles B. Coppen.

For respondent: Clifford A. Kingsley.

Tbe fact that tbe petitioner actually did work for tbe defendant from tbe latter part of July, 1931, to tbe first of March, 1932," seems to tbe Court quite conclusive of tbe question presented here for determination. It would appear that in October, 1931, be was given back bis old job at bis own request. He was transferred to another position in January, 1932, not because be was unable to perform bis other duties, nor at bis solicitation, but on account of curtailment in tbe defendant’s plant. It later developed that be did not understand and was unable to perform satisfactorily tbe job given him in January, 1932, and for that reason be bad to be discharged in March of that year because there was no other position open to him. In other words, tbe Court is of the opinion that be is now out of work for economic causes and not because be is unable to labor.

For tbe reasons above indicated, in tbe judgment of tbe Court tbe petition should be dismissed.  