Bolduc v. Marcalus Mfg. Co.

• Decision Date: 02 May 1950
• Citation: Bolduc v. Marcalus Mfg. Co., 96 N.H. 235, 73 A.2d 115 (N.H. 1950)
• Parties: BOLDUC v. MARCALUS MFG. CO.
• Court: New Hampshire Supreme Court

Page 115

73 A.2d 115

96 N.H. 235

BOLDUC v. MARCALUS MFG. CO.

Supreme Court of New Hampshire.

May 2, 1950.

Arthur J. Bergeron, Berlin, for plaintiff.

Hinkley & Hinkley, Lancaster, Walter D. Hinkley, Lancaster, for defendant.

LAMPRON, Justice.

Defendant's position in its brief and in oral argument is 1) that plaintiff's present condition is not compensable; 2) that there was no evidence to support the finding that the plaintiff's earning capacity had been decreased by the accident; 3) that the award was not computed in accordance with the provisions of the act; 4) that the Court had no right to award a lump sum.

There was ample evidence from which the Court could find that plaintiff's accident activated a previously dormant arthritic condition existing in his right knee and that this activation is the cause of whatever disability the plaintiff has since had because of arthritis. The defendant does not seriously contend that such activation did not take place but maintains that no disability resulted therefrom and that if such disability be found it is not compensable under the act.

Plaintiff was 50 years old at the time of the accident. He has been a woodsman since he was 18 years of age. He has no education and knows no other trade. As a cord cutter he could cut, on an average, about 2 1/4 cords per day for which he was paid at the rate of $5 per cord or $67.50 for a six day week. The Court could properly find on the evidence that, since his accident and as result thereof, he can no longer cut by the cord, but is only able to work as a swamper for which he receives .65 an hour or $35.10 for a nine hour a day six day week. The doctors were in accord in their testimony that in his condition he is unsuited and unfit for hard and heavy work, such as cutting by the cord, as a permanent employment. The Court properly found that his ability to earn, Carignan v. Winthrop Spinning Company, 95 N.H. 333, 63 A.2d 241, had been decreased by his accident, that he had incurred partial disability as a result thereof.

The defendant admits, and properly, that under the old act, R.L. c. 216, disability resulting from aggravations of pre-existing diseases or defects by accident arising out of and in the course of the employment were compensable. Rivard v. J. F. McElwain Co., 95 N.H. 100, 58 A.2d 501; O'Brien v. Manchester Yarn Mills, 95 N.H. 118, 59 A.2d 172. And a pre-existing arthritic condition aggravated by an accidental injury, such as is the case here, would have come under that rule. Horn v. Industrial Commission, 68 Ariz. 323, 205 P.2d 1198; Pacific Employers Ins. Co. v. Industrial Accident Commission, 92 Cal.App.2d 124, 206 P.2d 372; 4 Schneider Workmen's Compensation, 3d Ed., § 1305, p. 492. The defendant contends, however, that plaintiff is not entitled to recover under Laws 1947, c. 266, because his arthritis was not the direct result of his accident (1947 accident did not cause but merely activated his pre-existing arthritic condition) and because it is a disease which he had when he began his employment.

A careful reading of the old act, R.L. c. 216, § 2, and a comparison of its language with that of the new act, Laws 1947, c. 266, § 2, III, will reveal that their application to accidental compensable injuries does not differ materially. The old act as construed, Guay v. Brown Company, 83 N.H. 392, 142 A. 697, 60 A.L.R. 1284, imposed liability for accidental injury arising out of and in the course of the employment. The new act maintains as compensable personal injuries 'accidental injury * * * arising out of and in the course of the employment * * *' and adds thereto certain specific diseases. The limitations on recovery are thereafter contained in said section such as: 'It shall not include other diseases * * * unless they are the direct result of an accident arising out of and in the course of employment, nor shall it include a disease which existed at commencement of the employment, * * *.' In our opinion, these limitations are imposed on the added ground of recovery, namely occupational diseases so-called which were not compensable under the old act, Thompson v. Amoskeag Mfg. Company, 86 N.H. 436, 170 A. 769, and do not in any way limit recovery for accidental injury arising out of and in the course of employment which remains the same as in the old act. In other words they are not limitations upon the right to compensation for accidental injury but rather limit the added ground for compensation, namely, disease.

The legislature having thus adopted in the new act the almost identical definition of accidental injury contained in the old act, the plaintiff's injury, compensable under the old act, is also compensable under the new. The judicial interpretation of the old act became an integral part thereof and under the rules of statutory construction would continue to be controlling under the new act, in the absence of weighty evidence that the legislature did not intend to adopt such prior judicial interpretation. Niemi v. Boston & M. Railroad, 87 N.H. 1, 9, 173 A. 361, 175 A. 245.

If plaintiff were seeking recovery on the ground that his employment by the defendant caused his arthritis, defendant's position that the arthritis existed 'at commencement of the employment', Laws 1947, c. 266, § 2, III, and is therefor not compensable would be well taken as well as its further position that its existence not being 'the direct result of an accident arising out of and in the course of employment' (Id.) prevents its being grounds for compensation. The plaintiff bases his right...