Crosby v. Grandview Nursing Home

• Decision Date: 01 May 1972
• Citation: 290 A.2d 375
• Parties: Mary CROSBY v. GRANDVIEW NURSING HOME and/or The Travelers Insurance Co.
• Court: Maine Supreme Court

Page 375

290 A.2d 375

Mary CROSBY v. GRANDVIEW NURSING HOME and/or The Travelers Insurance Co.

Supreme Judicial Court of Maine.

May 1, 1972.

Platz & Day by Thomas E. Day, Jr., John E. Griffin, Lewiston, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney by Lawrence P. Mahoney, Robert F. Hanson, Portland, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

The decree of the Industrial Accident Commission dated October 19, 1970 ordered that compensation be paid to the plaintiff at the rate of $61.83 for a period of ten weeks from July 28, 1969, the date of her injury, and then cease. The plaintiff appeals from the subsequent pro forma decree. We sustain the appeal.

Mary Crosby, the claimant and appellant, suffered a fracture of the base of the fifth metatarsal of her left foot while in the employ of Grandview Nursing Home, the appellee herein, on July 28, 1969. There is no dispute that the accidental fall which resulted in injury to the appellant was compensable. The only issue before the Commissioner was whether the acute foot strain which later developed was causally related to the original compensable injury. The Commissioner found against the appellant on this issue and his decision generated this appeal.

The physician who treated Mrs. Crosby for her injury had put a walking cast on her left leg on the day of the accident and told her to stay off the cast for three days so that it could harden. The doctor then added she could thereafter pursue her original activity at work. This advice she followed and she continued to work for the Grandview Nursing Home, the appellee, to the extent of her physical capacity until August 28, 1969 when the cast was removed and her employment thereafter discontinued. X-rays taken at that time revealed partial healing of the foot. The doctor testified: 'I asked her to guard her activities for the next month.'

Approximately two weeks later on September 12, 1969, on her first visit to the doctor since the cast removal, the claimant complained of pain in her foot. The doctor diagnosed the condition as 'acute foot strain.' Disapproving of the type of shoes Mrs. Crosby was wearing, the doctor testified: 'I asked her at that time to get herself some decent supportive shoes to see if they wouldn't relieve her complaints.' He further stated that he did not indicate at that time that she have an arch support molded to her foot.

The appellant's second visit to the doctor following the removal of the cast was on April 20, 1970. Mrs. Crosby, however, approximately one month earlier had contacted the doctor by phone to complain that the pain was persisting. On this second visit x-rays indicated complete healing of the bone. But, as the doctor testified, she had some pain over the attachment of the plantar ligament to the heel. He further siad that at that time Mrs. Crosby had a pair of imitation space shoes which he felt 'were not doing the job', that 'some other type of shoe would be better' and that 'it is more than likely she should have an arch support in her shoes to support her foot more adequately.' On re-cross examination of Mrs. Crosby, the following colloquy took place:

'By Mr. Mathoney:

Q. Mrs. Crosby, did the doctor again speak to you about the shoes you were wearing?

A. Well, the last time I went (April 20, 1970) he said-he mentioned some arch supports that I might have, but I didn't ask where to get them and he didnt's tell me where to get them or anything.

Mr. Day: Do you have arch supports in these shoes?

A. Yes, I do have.'

On re-cross, and after examining the shoes the appellant was wearing at the hearing, the doctor categorically stated: 'I have no objection to space shoes.' Those shoes, the claimant testified, were secured after the September 12, 1969 visit when the doctor advised her to get 'some decent supportive shoes' and she had worn them ever since that time.

The claimant contends that the Commissioner committed error in law when he found no causal connection between her acute foot strain and the accident.

We recognized that on appeal from a decree of an Industrial Accident Commissioner the Commissioner's findings of fact are final if they are supported by competent evidence and reasonable inferences which may be drawn therefrom. 39 M.R.S.A. § 99; Soucy v. Fraser Paper, Limited, 1970, Me., 267 A.2d 919. Disability due to an industrial accident, the extent thereof, and the issue of causal relation between the accident and the disability are questions of fact, and the compensation claimant has the burden of proof in establishing the same. Baker's Case, 1947, 143 Me. 103, 55 A.2d 780; MacLeod v. Great Northern Paper Company, 1970, Me., 268 A.2d 488. Such claimant need not, however, prove that the accident was the sole proximate cause of the disability. MacLeod v. Great Northern Paper Company, supra.

On the other hand, the Commissioner, in arriving at his conclusions, must be guided by legal principles and, if he fails in this, he commits an error of law which this Court is authorized to correct on appeal. Robitaille's Case, 1943, 140 Me. 121, 34 A.2d 473. In the absence of competent evidence to sustain a finding, the issue becomes one of law and it is the duty of this Court under such circumstances to set aside the finding of the Commission. Eleanora Gagnon's Case, 1949, 144 Me. 131, 65 A.2d 6. A decree expressly based in part upon recitals of alleged facts which do not appear in evidence is erronous as a matter of law. Final findings of fact must be grounded upon evidence presented before the Commissioner. Gauthier's Case, 1921, 120 Me. 73, 113 A. 28. A ruling based in any degree on a misapprehension of the facts in evidence must be set aside. See, Hinckley's Case, 1940, 136 Me. 403, 11 A.2d 485. The disregard of competent and probative evidence favorable to the claimant constitutes an error of law which would necessitate the sustaining of an appeal from a decree based on such decision. Albert's Case, 1946, 142 Me. 33, 45 A.2d 660; Bernier v. Coca-Cola Bottling Plants, Inc., 1969, Me., 250 A.2d 820.

Viewed in the perspective of proper legal principles, the Commissioner's decree cannot stand.

The Commissioner correctly stated the issue: 'There is no question about the continuing disability of the employee, the only issue is what was the cause thereof.'

He further found that on August 28, 1969 when the cast was removed the doctor only advised the claimant 'to be careful for at least another month.' In fact, the doctor said: 'I asked her to guard her activities for the next month.' We note at this point that no advice was given to Mrs. Crosby as to the type of shoe she should wear. It is only on September 12, some two weeks after the case removal, that the doctor asked her to get herself 'some decent supportive shoes.' He admitted: 'I don't think I made any special appliances at that time.' To the following question: 'So there wasn't any indication at that time with reference to having an arch support molded to the foot?' the doctor answered: 'Not at that time, no.' The record is clear and undisputted that Mrs. Crosby immediately followed the doctor's recommendation and purchased a pair of imitation space shoes from the Lamey-Wellehan shoe store. She testified, and her testimony is undisputed, that these shoes have an arch support, were fitted to her foot and were worn by her from the time of their purchase immediately after the doctor's advice to her to get 'decent supportive shoes.' The doctor expressly said that he had no objection to space shoes.

Although Mrs. Crosby called the doctor on March 16, 1970 and told him, according to the doctor's version of the conversation, that she was still having symptomatology and could only work part time, the record reveals that her appointment with the doctor following their telephonic conversation was April 20, 1970. It Mrs. Crosby's acute foot strain as existed at that time was due, as claimed, in whole or in part to her inadequately supportive shoes, such consequence would be the result of the doctor's failure to have informed the claimant of the specific type of shoe which in his best medical judgment he thought she should wear. Certainly, a shoe with an arch support to which the doctor himself admitted under oath that he had no objection would qualify as a 'decent supportive shoe' which the doctor had asked Mrs. Crosby to get on her first visit of September 12, 1969.

It is the duty of a physician or surgeon who undertakes to treat a patient to exercise ordinary or reasonable care and diligence in his treatment of the case and use his best judgment in his application of his skill to the case. The treatment of a fractured foot cannot be administered according to fixed and unvarying rules. Some adjustments may have to be made. The doctor's admission that '(o)ne month is a very short time to wear a cast and to get this much difficulty and on the other hand this much difficulty can occur with wearing a cast for a short period of time,' indicates that the doctor must anticipate variable eventualities and that under such circumstances it is his duty to watch for any manifestations of foot strain by reason of immobilization and, upon notice that such is occurring, to examine the patient and use his best judgment to determine the cause and employ reasonable care and diligence in the exercise of his skill and the application of his learning to bring about relief. Coombs v. King, 1910, 107 Me. 376, 78 A. 468. The physician or surgeon is answerable for injury to his patient proximately resulting from his lack of ordinary skill or from the lack of its application, or from neglect or carelessness in the diagnosis and treatment of the case, or failure to exercise his best judgment. Patten v. Wiggin, 1862, 51 Me. 594,81 Am.Dec. 593; Josselyn v. Dearborn, 1948, 143 Me. 328, 338, 62 A.2d 174.

It is the duty of a physician or surgeon, even if personal...