Dufault v. Midland-Ross of Canada, Ltd., MIDLAND-ROSS

• Decision Date: 07 December 1977
• Docket Number: MIDLAND-ROSS
• Court: Maine Supreme Court
• Parties: Richard J. DUFAULT v.OF CANADA, LTD. and/or Lumbermens Mutual Casualty Company.

Page 200

380 A.2d 200

Richard J. DUFAULT v. MIDLAND-ROSS OF CANADA, LTD. and/or Lumbermens Mutual Casualty Company.

Supreme Judicial Court of Maine.

Dec. 7, 1977.

McTeague, Higbee & Tierney by Maurice Libner (orally), Patrick N. McTeague, Brunswick, for plaintiff.

Richardson, Hildreth, Tyler & Troubh by Robert Hazard (orally), Ronald D. Russell, Portland, for defendants.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

McKUSICK, Chief Justice.

In July 1976, while employed in Jay, Maine, as a journeyman sheetmetal worker by Midland-Ross of Canada, Ltd. (Midland-Ross), Richard J. Dufault suffered an injury to his upper back. Dufault and Midland-Ross reached an agreement for compensation dated September 7, 1976, by which Midland-Ross agreed to pay Dufault compensation at the rate of $151.84 per week during his "present period of total incapacity beginning July 29, 1976." The Industrial Accident Commission approved the agreement on January 25, 1977. 39 M.R.S.A. § 94 (1964) (amended 1973).

In February, Midland-Ross petitioned for review of incapacity. 39 M.R.S.A. § 100 (1964) (amended 1973). Following a hearing the commissioner found that Dufault's incapacity for work was "not then connected to" the incident of July 1976 and ordered his compensation benefits suspended from the date of the decree, March 24, 1977. The employee appeals from the pro forma decree of the Superior Court entered in accordance with the commission's order.

We sustain the appeal and remand for the commissioner to enter specific findings of fact. In so doing, we reject the employee's assertion that the commissioner erred by receiving into evidence certain medical reports and by ordering his compensation benefits immediately suspended, notwithstanding this appeal.

I. Sufficiency of the Commissioner's Findings of Fact

The commissioner who rules upon a petition is directed by statute to file with the commission his "decision, findings of fact and rulings of law, and any other matters pertinent to the questions so raised." 39 M.R.S.A. § 99 (1964). We have frequently emphasized our need for specific factual findings in order to enable this court on appeal to determine whether competent evidence supports the commission's decision and whether its decree is based either upon a misapprehension of fact or a misapplication of law to the facts. E. g., Guerrette v. Fraser Paper, Ltd., Me., 348 A.2d 260 (1975); Martel v. United States Gypsum Co., Me., 329 A.2d 392 (1974); Foster v. Bath Iron Works Corp., Me., 317 A.2d 11 (1974); Overlock v. Eastern Fine Paper, Inc., Me., 314 A.2d 56 (1974); Bolduc v. Pioneer Plastics Corp., Me., 302 A.2d 577 (1973). As we observed in Guerrette, supra at 262:

"The Commission has the duty to make specific findings of basic ultimate facts upon which its order is predicated. In making such findings the Commission establishes an adequate foundation for appellate review, namely, the existence, or nonexistence, of competent evidence." (Emphasis in original)

The commissioner in the case at bar failed to carry out his duty to find the facts, as mandated by the statute and elucidated by numerous opinions of this court. The first paragraph of his order recites that at the hearing held on Midland-Ross' petition for review of incapacity, certain exhibits were received in evidence. The second, and concluding, paragraph consists of a single sentence:

"This Commission finds, on the medical evidence presented, that the employee's incapacity for work is not connected to the incident of July 23, 1976, and orders that compensation be suspended."

The conclusory language of that sentence generates such ambiguity that we must remand for specific findings of the facts underlying the commissioner's decision.

A petition for review of incapacity addresses itself to change of circumstances since the time of the earlier determination, by commission decree or by agreement of the parties approved by the commission, of the employee's disability and the causal connection of that disability to a work incident. 39 M.R.S.A. § 100 (1964) (amended 1973). ¹ A change of circumstances appropriate to justify reduction or suspension of compensation (i) may consist of change in the disability of the employee, Martel v. United States Gypsum Co., supra, or (ii) may, in less common fact situations, consist of change in the cause of the employee's continuing disability, as, for example, through the occurrence of an independent supervening cause, cf. Richardson v. Robbins Lumber, Inc., Me., 379 A.2d 380 (1977). In any event, the benchmark from which either such change must be measured is the decree or agreement which, in the absence of fraud, establishes with binding force the degree of the employee's injury and its causative connection with his employment. Only changes in circumstances of disability or causation occurring after the decree or agreement count in support of making a change in compensation payments.

On a petition for review of incapacity, the employer has the burden of proving that since the time of the earlier determination, the employee has regained some work capacity, i. e., that the condition of total or partial incapacity caused by a compensable injury has diminished or entirely ceased. Dailey v. Pinecap, Inc., Me., 321 A.2d 492 (1974). The employer can meet this burden of proving change of circumstances in the employee's condition by producing medical evidence proving that the employee has regained an ability to perform some work ordinarily available in the community. Connelly's Case,122 Me. 289, 119 A. 664 (1923). When that medical evidence is accepted and believed by the factfinder, Pelchat v. Portland Box Co., Inc., 155 Me. 226, 229-30, 153 A.2d 615, 617 (1959), the employee, to defeat reduction or suspension of compensation, must come forth with evidence that he has used reasonable efforts to obtain the kind of work for which he is then suited but has nonetheless failed to obtain such work either because of his existing incapacity or because such work is in fact not then available in the community. Martel v. United States Gypsum Co., supra; Pelletier v. Pinette, Me., 259 A.2d 25 (1969).

On its face, the present order is susceptible of two interpretations. On the one hand, by a minimal exercise in deduction, it can be read as relating to a change in Dufault's work capacity subsequent to the earlier determination of total disability. That is, the commissioner's "finding" can be read as his conclusion from underlying findings of fact that (1) Midland-Ross, as the moving party, had met its burden of proving that Dufault had regained full work capacity, and that (2) Dufault had not then satisfied his burden of going forward with evidence that he, after reasonable efforts, had failed to obtain the work for which he was then suited.

On the other hand, the order can at least equally well be read to relate to a break in the chain of causation occurring subsequent to the earlier determination that his disability was caused by an incident at work on July 23, 1976. That is, the commissioner's "finding" can be read as being based upon an underlying finding that even though Dufault was still totally disabled, his work capacity was no longer causally connected to the July incident, but rather now arose from an independent cause intervening subsequent to the date of the parties' agreement for compensation. ² Nothing, however, in the medical reports received by the commissioner as exhibits or in the testimony at the hearing supports such a finding. If the commissioner meant by the language of his order to indicate that he based his decision to suspend compensation upon a finding of break in the chain of causation after the agreement, his decision would be erroneous as a matter of law because of the absence of competent evidence to sustain the finding. E. g., Soucy v. Fraser Paper, Ltd., Me., 267 A.2d 919 (1970).

The ambiguity in the commissioner's conclusory order precludes our review of the correctness of his decision. As we warned in Overlock v. Eastern Fine Paper, Inc., supra at 57:

"The Commission's failure to respond to its directed responsibility to make findings of fact and conclusions of law may well require this Court, in a future given instance, to remand a case to the Commission for findings of fact and conclusions of law thus impeding prompt appellate review. This Court should have before it the findings which are authority for a decision and constitute a basis therefor."

The case at bar presents the exact situation anticipated in Overlock. We remand for the commissioner, on the present record, to state the specific findings of fact upon which his decision is based.

II. Effective Date of the Parties' Agreement for Compensation

On remand, it will be necessary for the commissioner to reexamine the evidence in the present record to make the required specific findings of fact. That evidence includes two medical reports introduced as exhibits by Midland-Ross in support of its petition for review. Those reports ³ were based upon examinations of Dufault by two specialists in the period of time after the parties on September 7, 1976 had entered into their agreement for compensation but prior to January 25, 1977, when the commission approved the agreement. If the January approval had the effect of an adjudication of the employee's condition as of that date, the approval would conclusively establish Dufault's condition of total incapacity based upon all the facts then existing, including those revealed in the medical reports. If such is the effect of the January approval, the employer on its petition to reduce compensation must prove a change in Dufault's condition after January 25, 1977. The prior medical reports would then not show any change in the employee's condition warranting reduction or suspension of compensation. Because the parties dispute the competency of the reports as evidence...