Brough v. Bell Pike Northeast

• Decision Date: 03 February 1982
• Citation: 440 A.2d 365
• Parties: George F. BROUGH v. BELL PIKE NORTHEAST and Employers Mutual Liability of Wisconsin.
• Court: Maine Supreme Court

Page 365

440 A.2d 365

George F. BROUGH v. BELL PIKE NORTHEAST and Employers Mutual Liability of Wisconsin.

Supreme Judicial Court of Maine.

Argued Jan. 5, 1982.

Decided Feb. 3, 1982.

Richard E. Valentino, Saco (orally), for plaintiff.

Norman & Hanson, Stephen W. Moriarty (orally), Robert F. Hanson, Portland, for defendants.

Before McKUSICK, C. J., and GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

WATHEN, Justice.

The employee, George Brough, appeals from a pro forma decree entered in Superior Court, Cumberland County, incorporating a decision by the Workers' Compensation Commission. The Commissioner had denied Brough's petition for award of compensation, concluding that the evidence presented was insufficient to sustain the employee's burden on the issue of causation. Brough challenges the decree on the grounds that there was no competent evidence to support the Commissioner's conclusion. We affirm the pro forma judgment below.

The evidence showed that Brough began work as a pipe fitter and welder with Bell Pike Northeast in July 1979. On September 17, 1979, while moving a 1000 pound I-beam with two other workers, he felt a rip in his lower back and experienced sharp pains in his right leg. He was examined at the Maine Medical Center and advised to return to work. Brough later consulted an orthopedist and a neurosurgeon whose reports indicate both that Brough had previously been diagnosed as having a minor abnormality of his low back and that he had experienced pain in his low back and right leg several months earlier after moving a heavy piece of pipe. Both doctors theorized that nerve root compression was causing plaintiff's pain. Plaintiff elected to have surgery performed by Dr. Bidwell, the neurosurgeon. This procedure revealed a ruptured disc which Dr. Bidwell testified had caused the nerve root compression. Surgical repair of the disc greatly relieved plaintiff's pain.

An employee petitioning for award of compensation has the burden of showing by a preponderance of competent and probative evidence that a causal relationship existed between the work-related incident and the employee's disability. Rowe v. Bath Iron Works Corp., Me., 428 A.2d 71, 73 (1981). The determination of causal connection is a question of fact. Bruton v. City of Bath, Me., 432 A.2d 390 (1981); Rowe v. Bath Iron Works Corp., 428 A.2d at 73. Our review on this issue, therefore, is limited, and we must sustain the decree if the record contains competent evidence supporting the Commissioner's findings. ¹ Bruton v. City of Bath, 432 A.2d at 392; Mortimer v. Harry C. Crooker & Sons, Inc., Me., 423 A.2d 248, 250 (1980). This is the case even if the evidence would also have supported a different conclusion. Bruton v. City of Bath, 432 A.2d at 392; Dunton v. Eastern Fine Paper Co., Me., 423 A.2d 512, 518 (1980).

In the present case, Dr. Bidwell testified in response to a hypothetical question that when symptoms arise in the manner in which Brough's did, "it appears to be a cause and effect thing as far as symptoms go." (emphasis added) The record before the Commissioner, however, was devoid of evidence concerning the etiology of the employee's ruptured disc. ² This lack of evidence coupled with the evidence showing that Brough had had back trouble predating the September 17th incident certainly provides a foundation for the Commissioner's negative finding on the issue of causation.

The employee has also assigned as legal error the Commissioner's conclusion that he could ascertain neither when the injury occurred nor by whom Brough was employed at the time it occurred. This conclusion is merely a different formulation of the finding on causation, however, and the configuration of evidence supporting that finding supports this negative conclusion as well.

The entry is:

Appeal denied.

Judgment affirmed.

It is ordered that the employer pay to the employee an allowance of $550.00 for his counsel fees plus his reasonable out-of-pocket expenses for this appeal.

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