Armstrong v. Lake Tarleton Hotel Corp.

• Decision Date: 27 October 1961
• Citation: 174 A.2d 410,103 N.H. 450
• Parties: Josephine R. ARMSTRONG v. LAKE TARLETON HOTEL CORPORATION et al.
• Court: New Hampshire Supreme Court

Page 410

174 A.2d 410

103 N.H. 450

Josephine R. ARMSTRONG v.LAKE TARLETON HOTEL CORPORATION et al.

Supreme Court of New Hampshire.

Oct. 27, 1961.

Broderick, Manning & Sullivan and Maurice A. Broderick, Manchester, for plaintiff.

Sheehan, Phinney, Bass, Green & Bergevin and John F. Cullity, Manchester, for defendants.

LAMPRON, Justice.

Plaintiff contends that she is entitled to an award for 341 weeks at $33.The agreement executed between the parties on June 27, 1957 and approved by the Labor Commissioner July 8, 1957, provided that plaintiff was to receive compensation at the rate of $33 per week payable from and including the 15th day of June, 1957'until terminated in accordance with the provisions of the Workmen's Compensation Law of the State of New Hampshire'RSA 281:36.She maintains that this is an award still in effect since it has not been modified by the Commissioner under section 40 of the Act and is therefore determinative of the continuance of her total disability.King v. Kniznick, 98 N.H. 247, 249, 98 A.2d 356.She argues further that, if her present petition should be considered as one for modification of the agreement, the defendant has failed to sustain its burden of proving her ability to work at any gainful occupation.RSA 281:23.

We said in Cassidy v. Fellows & Son, Inc., 98 N.H. 441, 444, 102 A.2d 499, 501, that 'In the usual case where an employer or his insurer claim that disability has ended, orderly procedure would dictate that the burden should be upon them to seek review by a suitable petition to the commissioner or court as the case may be.'Upon the filing of such a petition by the employer or insurer, the Legislature has provided as follows by an amendment to RSA 281:40, effective July 15, 1959: 'When application under this section is made for reduction of compensation, or ending of same, the applicant must accompany such application with medical evidence that the injured employee is physically able to perform his regular work, or able to engage in gainful employment.On the basis of such medical evidence the commissioner may authorize suspension of further payments pending a hearing before him; otherwise compensation shall continue on the existing agreements until hearing and award is made by the commissioner.'Laws 1959, 187:9.This amendment however does not apply to this case which was decided by the commissioner before its effective date.

Other provisions of the act in effect when plaintiff filed her petition provided that compensation is to be paid during disability for work resulting from an injury and that 'payments shall not continue after the disability ends.'Zeady v. Arms Textile Mfg. Company, 96 N.H. 328, 330, 76 A.2d 512, 513;Latour v. Producers Dairy, Inc., 102 N.H. 5, 8, 148 A.2d 655.This language places the burden on the plaintiff to prove the duration of her disability.Flannagan v. Prosper Shevenell & Son, 82 N.H. 403, 404, 135 A. 24.Even though failure of the defendant to seek review of their agreement by petition under the act may have been prima facie evidence of the continuance of plaintiff's disability (Dube v. Bickford, 92 N.H. 362, 364, 31 A.2d 64) it did not relieve her from the burden of proving the extent and duration of the disability for which she seeks compensation which are questions of fact for the Trial Court.Condiles v. Waumbec Mills, 95 N.H. 127, 129, 58 A.2d 726;Enos v. Abrasive Machine Tool Co., 84 R.I. 454, 456, 125 A.2d 111.

The Trial Court found that plaintiff was totally disabled from June 14, 1957, until November 8, 1957 and that she was partially but permanently disabled thereafter with an impairment of twenty per cent.Plaintiff contends that on the evidence the Court could only find that the ability to work at any gainful occupation has not been recovered and that she was therefore entitled to total disability for the maximum statutory period.

'Compensable disability is inability, as the result of a work- connected injury, to perform or obtain work suitable to the claimant's qualifications and training.'2 Larson, Workmen's Compensation Law, § 57.00.'An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist, may well be classified as totally disabled.'Id., § 57.51;Colantino v. Kingsbury Machine Tool Company, 97 N.H. 23, 25, 79 A.2d 633.'Inability to get work traceable directly to a compensable injury may be as effective in establishing disability, as inability to perform work.'2 Larson, Workmen's Compensation Law, § 57.60.Valley v. Town of Wolfeboro, 103 N.H. 162, 164, 167 A.2d 58.

Plaintiff, who was 66 years of age at the time of the trial, has not been gainfully employed since her injury and has not sought employment.There was evidence that since 1955she has had a facial tic which causes the eyelid on her left eye to drop shutting off the sight from that eye.She also testified that she has had a tremor in her right hand which began sometime after her injury.When asked 'have you tried to get work since you were hurt?' her reply was 'No, I am licked.I am depressed.I am morose.I am melancholy.'

Over defendants' objection, plaintiff introduced the testimony of two employment counselors on the staff of the State Department of Employment Security.They testified that, given plaintiff's education; the disability in her right arm caused by this fall; her facial tic and the tremor in her right hand; her nervousness; the result of certain tests given to her, it was their opinion that her services could not be sold in the labor market, in other words they did not believe they could place her in employment.

The Trial Court could find that this testimony would probably aid it in arriving at the extent of plaintiff's disability.O'Haire v. Breton, 102 N.H. 448, 450, 159 A.2d 805.The fact that the experience of the witnesses was in the New Hampshire labor market and that they were not familiar with the market in New York went to the weight only of their testimony.Paisner v. Renaud, 102 N.H. 27, 31, 149 A.2d 867.Defendant's exception to the admission of this testimony is overruled.

The Workmen's Compensation Law is designed to afford compensation for loss of earning capacity due to injury arising out of and in the course of employment.Peak v. Nashau Gummed Coated Paper Company, 87 N.H. 350, 352, 179 A. 355.Plaintiff's sense of discouragement, depresion and defeat, if found to be due to her accident, would have to be considered by the Trial Court in determining her disability.The extent, nature and effect of mental hurt are all inquiries of fact.Vallee v. Spaulding Fibre Company, 89 N.H. 285, 287, 197 A. 697.Her physical defects or ailments existing prior to the accident as well as any which may become manifest thereafter become material factors in determining plaintiff's inability to work at any gainful occupation if the accident affected them, either in immediate connection or in course of causative sequence which could be...