Dodier v. State Dept. of Labor

• Decision Date: 29 April 1977
• Docket Number: Nos. 7259 and 7504,s. 7259 and 7504
• Citation: 117 N.H. 315,373 A.2d 341
• Parties: Janet M. DODIER v. STATE of New Hampshire DEPARTMENT OF LABOR et al. Janet M. DODIER v. DAVIDSON RUBBER COMPANY, INC., et al.
• Court: New Hampshire Supreme Court

Page 341

373 A.2d 341

117 N.H. 315

Janet M. DODIER v. STATE of New Hampshire DEPARTMENT OF LABOR et al.

Janet M. DODIER v. DAVIDSON RUBBER COMPANY, INC., et al.

Nos. 7259 and 7504.

Supreme Court of New Hampshire.

April 29, 1977.

James J. Kalled, Wolfeboro, by brief and orally, for the plaintiff.

David H. Souter, Atty. Gen., waived brief and oral argument.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Theodore Wadleigh, Manchester, orally), for defendants Davidson Rubber Co., Inc., and Travelers Ins. Co.

LAMPRON, Justice.

The main issue to be decided is whether under RSA 281:26 XVI, in effect at the time of plaintiff's injury in an industrial accident on August 29, 1968, she was entitled to an additional healing period of 117 weeks for the loss of 97% vision in her left eye which is to be compensated as the loss of an eye. Id. XXI. The deputy labor commissioner denied plaintiff's petition therefor and she appealed to the superior court. As RSA 281:26-a III provided that any such dispute 'shall be determined by the labor commissioner on the basis of competent medical evidence and said findings shall be final,' the Trial Court (Batchelder, J.) ruled that it had no jurisdiction over the issue. Plaintiff then proceeded in this court by a petition for a writ of certiorari under an agreed statement of facts by the parties.

As no appeal from the decision of the commissioner was provided by RSA ch. 281, the trial court properly dismissed plaintiff's appeal for lack of jurisdiction. See In re Belgrade Shores, Inc., 359 A.2d 59, 61 (Me.1976). Certiorari is therefore a proper remedy. Tasker v. N.H. Personnel Comm'sn, 115 N.H. 204, 206, 338 A.2d 543, 544 (1975). 'However, our opinions have consistently pointed out that on certiorari it is not open to this court to make de novo findings or to revise those made by the commission. The only question before us is whether the . . . (commissioner) has acted illegally in respect to jurisdiction, authority or observance of the law, thereby arriving at a conclusion which could not legally or reasonably be made.' Id. Because the deputy labor commissioner made his determination in this case on the basis of an incorrect interpretation of the applicable law, his decision must be reversed.

Plaintiff was employed as an assembly line worker by defendant Davidson. On August 29, 1968, a steel bristle flew from a rotary wire brush being operated eight or nine feet from her and penetrated plaintiff's left eyeball. The resulting injury was initially diagnosed by Dr. Goodall as a '(p)erforating wound of the left cornea with apparent perforation of the interior lens capsule . . . with traumatic cataract and secondary glaucoma.' Plaintiff underwent four operations on her left eye on August 31, 1968, September 4, 1968, January 3, 1969, and on January 14, 1969.

The parties agree that plaintiff was paid temporary total disability from August 29, 1968, to January 29, 1969, a period of 22 weeks. From January 30, 1969, to April 21, 1969, a period of 12 weeks, plaintiff received no compensation either temporary total or permanent partial. Commencing April 21, 1969, to September 13, 1971, a period of 126 weeks, plaintiff received the scheduled permanent partial disability payments for the loss of an eye. RSA 281:26 XVI.

On January 21, 1969, Dr. Goodall wrote a letter stating that he was to see the plaintiff on a follow up visit after her fourth operation. 'If all goes well I believe she could return to work not requiring perfect binocular vision and stereopsis as of January 28, 1969.' The deputy commissioner found that plaintiff started part time work at a snack bar in February 1969. 'After that she worked at seasonal jobs as this was the only type of work available in the area. Could have worked full time if available. Had no transportation to go to other areas. Did not return to work for Davidson Rubber as she thought fumes would bother her eye.' Plaintiff admits the part time work. She states in her brief that 'her capabilities were limited in so far as her lack of binocular vision would tolerate; she was forced to take periodic breaks to apply eye drops to the injured eye; the eye was easily tired by the rapid movements required at her work.'

The deputy commissioner decided as follows: 'RSA 281:26 a Limitations. Provides that payments for permanent partial disability under section 26 . . . shall be paid weekly from date of determination of permanent partial disability. By letter dated April 12, 1969, Dr. Edwin B. Goodall established disability as 97% loss of vision in left eye. Payments were started April 21, 1969, based upon this report. Therefore, it is determined that the claimant is not entitled to an additional healing period . . ..' The deputy commissioner thus considered the actual healing period to have ended as of the date when the degree of permanent loss of vision could be established.

However, it is uncontradicted that in a letter dated January 10, 1972, Dr. Goodall, who treated plaintiff, state that 'in the period between January 1969 and May 1, 1971 it was medically ill-advised for Mrs. Dodier to return to work at the Davidson Rubber Co. in an irritating atmosphere, that her left eye was more easily fatigued than normal by full time employment use, and that it would have been very difficult for her to work full time during this period.' She 'continued to have intermittent aching pain and redness in the left eye which tended to get worse as the day went on. This required treatment with aspirin and soothing eye drops . . .. In October 1969, the tension in the left eye was found to be higher than normal on several occasions . . . pilocarpine drops were required four times a day in the left eye to keep the ocular tension normal.' Dr. Goodall further stated in that letter that the status of the injured eye was stabilized by May 1, 1971.

On the basis of the above determination, which was uncontradicted, plaintiff argues that the...