Coty v. Town of Millinocket

• Decision Date: 29 September 1978
• Citation: 391 A.2d 826
• Parties: Henry COTY v. TOWN OF MILLINOCKET and/or Commercial Union Assurance Companies.
• Court: Maine Supreme Court

Page 826

391 A.2d 826

Henry COTY v. TOWN OF MILLINOCKET and/or Commercial Union Assurance Companies.

Supreme Judicial Court of Maine.

Sept. 29, 1978.

Gross, Minsky, Mogul & Singal, P. A., by George Z. Singal (orally), David C. King, Bangor, for plaintiff.

Mitchell, Ballou & Keith by John W. Ballou (orally), James E. Mitchell, Bangor, for defendant.

Before POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

On September 18, 1973 Henry Coty, while employed as a laborer by the Town of Millinocket, sustained a compensable injury when the sides of the trench in which he was working collapsed, with the result that he fractured the tibial plateau of his right knee. He received compensation benefits for total incapacity at the rate of $77.70 per week until February 11, 1974, when he returned to work for the Town of Millinocket and compensation benefits were terminated by agreement of the parties.

On April 7, 1975 Coty filed with the Commission a petition dated March 27, 1975 in which he sought further compensation, claiming that, as a result of his leg injury, he had become totally incapacitated for work as of July 17, 1974, notwithstanding he had worked for the Town from that date to the time he petitioned for further compensation based on total incapacity. A first hearing was held at Bangor on July 16, 1975 at which the Commissioner received the testimony of Doctor Dale C. Bouton, an orthopedic surgeon whose qualifications were conceded and of the petitioner himself. On the fifteenth of August following the reference hearing, Coty was discharged from his job by the Town. He then filed with the Commission a second petition dated August 17, 1975 seeking, as he did in his petition dated March 27, 1975, identical relief, i. e. compensation benefits for total incapacity as of July 17, 1974. Another hearing was held at Millinocket on September 10, 1975, at which Coty testified, as well as Peter Pikelis, Public Works Director for the Town of Millinocket. The Commissioner dismissed Coty's two petitions on December 30, 1975. The Superior Court affirmed the Industrial Accident Commission decree from which a timely appeal to this Court was taken.

We sustain the appeal.

The testimony relating to the petitioner's claim of total disability may be fairly summarized in the following manner. Coty testified that his discharge by the Town was the result of his inability to perform all of the work assigned to him. He stated that, when he attempted to perform work involving long periods of standing, such as shoveling or picking paper off the streets, he would experience a severe pain in his injured right knee and that was the reason why he did refuse to do certain work assigned to him. He was willing at all times to do work which he was capable of performing. He did admit that he could operate the lawn mower for the Town in the summer and operate the wing on the town plow in the winter, as these were sitting down jobs. That the petitioner had a physical impairment was generally confirmed by Dr. Bouton, the only expert medical witness to testify. After several examinations, Dr. Bouton concluded on April 29, 1975 that Coty was partially disabled due to irregularities on the underside of his right kneecap; the petitioner could perform restricted work, but he would have difficulty with jobs requiring long periods of standing. His previous diagnosis was reconfirmed in his last examination of Coty on May 21, 1975.

The doctor testified:

"He was having pain around his knee with weight bearing, most of which I felt, and I was pretty definite about it, was from the irregularities, the irritation on the underside of his kneecap. He was working short time. He had to take off two or three days at a time sometimes because of pain and swelling. I advised some indocin which is an anti-inflammatory agent which helps many of them sometimes, sometimes it doesn't help them at all. That's the last time I saw him 5/21/75, and at that time I felt that this boy should not be doing pick and shovel, jack hammer, and the best thing they could do for him was to find him some other type of a job where it didn't put the strain on his knee. He still had the partial disability. It had not changed. He was going to have it. He probably will have it as he gets older and possibly when he gets to be my age, he will possibly have to have a patella replacement done.

Q. "Is it consistent with the condition of the knee that he would have pain with pick and shovel work, bending and picking up things off the ground, this irregularity?

A. "Definitely, very consistent with it. Because every time he has flexion and extension of his knee and this long weight bearing, he was irritating the knee joint itself because of the irregularities and the excursion of the patella up and down with flexion and extension."

Coty testified also that he looked for light work in the area, visiting seven or eight different potential employers, including Great Northern Paper Company, to no avail. At the unemployment office, he was told they did not have light work for him.

The situation presented by the Commissioner's decree is perplexing. First, he recites the evidence "There is no definite evidence as to the number of days actually lost from work in 1974, because of the injury. The average weekly earnings during that year were $110.38.

"There is evidence in the form of a list agreed upon by the parties which shows the dates that Mr. Coty was off work during 1975. These days total thirty-two, ten of them are full days and twenty-two are part days. Mr. Coty said that these days were lost because knee pain prevented him from doing certain work assigned to him. The average weekly wages paid to Mr. Coty by the town of Millinocket during 1975 were $112.13.

"Mr. Coty was examined in May 1975 by Dr. Dale C. Bouton, M.D. an orthopedist. It was Dr. Bouton's opinion then that there was some knee pain caused by irregularities under the patella, and that probably, at that time Mr. Coty would have difficulty on a job which would involve prolonged standing.

"There was testimony from Peter Pikelis, the Public Works Director for the Town of Millinocket, that during 1975 Mr. Coty refused certain work because he considered it to be too strenuous for his knee. Mr. Pikelis also testified that Mr. Coty accepted work on heavy machinery which he liked to do which seemed to be more strenuous than the work of picking up paper along the streets which he refused."

Then, the Commissioner concludes:

"Mr. Coty has been awarded unemployment compensation effective August 15, 1975.

"We are not convinced by the evidence that since July 1974 Mr. Coty's work capacity has been diminished to any significant degree by his leg injury.

"His average weekly earnings during 1974 and 1975 were only slightly less than the average during the year prior to his injury. In addition, the evidence is conflicting and leaves doubt as to the reason Mr. Coty didn't work on the days that he was off during 1975.

"The petition is hereby dismissed." (Emphasis added).

Once again, we are faced with a decree that lacks specific findings, a situation which we have deplored many times in the past. See Dufault v. Midland-Ross of Canada, Ltd., Me., 380 A.2d 200, 203 (1977); Overlock v. Eastern Fine Paper, Inc., Me., 314 A.2d 56, 57 (1974); Bolduc v. Pioneer Plastics Corporation, Me., 302 A.2d 577, 579 (1973).

As appears in this case, Coty had resumed his former employment on February 11, 1974, and continued therein until his discharge on August 15, 1975. Where...