Farrow v. Carr Bros. Co., Inc.

• Decision Date: 13 November 1978
• Citation: 393 A.2d 1341
• Court: Maine Supreme Court
• Parties: James W. FARROW v. CARR BROTHERS CO., INC. and/or Northern Assurance Co.

Page 1341

393 A.2d 1341

James W. FARROW v. CARR BROTHERS CO., INC. and/or Northern Assurance Co.

Supreme Judicial Court of Maine.

Nov. 13, 1978.

Bornstein & Campbell by Joseph L. Bornstein (orally), Portland, for plaintiff.

Norman & Hanson by Robert F. Hanson (orally), Portland, for defendants.

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

DELAHANTY, Justice.

James W. Farrow appeals from a pro forma decree entered by the Superior Court, Cumberland County, affirming a decision of the Industrial Accident Commission ¹ which denied him workers' compensation benefits on the ground that he had failed to give notice to his employer of his work-related injury within the thirty-day period established by 39 M.R.S.A. § 63. ²

We find sufficient legal and evidentiary support for the Commission's decision and accordingly deny the appeal.

During the latter part of 1976, appellant Farrow was employed by appellee Carr Brothers as a carpenter, a job requiring Farrow to work on his knees much of the time. Over the course of a three- to four-day period in early December, 1976, Farrow began to experience pain and swelling in his right knee. On December 6, 1976, Farrow approached his supervisor at Carr Brothers, Lincoln Gilman, and explained that he was having problems with his knee and that he would have to take the afternoon of the next day off in order to consult a doctor. He did not inform Gilman that he considered his injury to be work related although he had almost certainly reached that conclusion himself. ³

On December 7, Farrow was examined by Dr. Michael Bedecs, an osteopath engaged in family practice. Farrow described his working conditions, and Dr. Bedecs confirmed Farrow's opinion that his knee injury was the result of his activities at Carr Brothers. ⁴ The inflammation and soreness were diagnosed as bursitis, and Dr. Bedecs prescribed a treatment of rest, heat, and bandages. He also advised Farrow to "avoid work if possible . . . ."

Despite Dr. Bedecs' advice, Farrow returned to work on December 9 after only one day's rest. At that time, he informed Gilman of the extent of his knee injury but again, as appellant concedes in his brief, he did not mention that he considered his condition to be work related. Farrow continued working at Carr Brothers despite increasing discomfort until December 23, 1976 when he voluntarily terminated his employment. When asked at the hearing why he had decided to give up his job at Carr Brothers, he explained:

Well, it was a combination of things. At that point I was trying to get a business together. I needed more time on my own to work on that. I was also suffering more and more pain from the knee, and it just wasn't expedient for me to keep working because I couldn't . . . keep up the pace of the work.

Farrow again consulted Dr. Bedecs on January 14, 1977. The swelling of the right knee had not subsided, and Dr. Bedecs decided to inject a needle and drain off the excess fluid. Farrow then realized that, in his words, "the condition had grown worse, and it was becoming obvious to me that it was going to lay me up for some time." Accordingly, soon after the January 14 treatment, Farrow visited Carr Brothers' office with the intention of filing a workers' compensation claim form. Although Farrow asserts that he filled out a form and discussed his situation with a Carr Brothers' secretary who accepted the form, neither the form nor the secretary were produced at the hearing.

Farrow next returned to the Carr Brothers' office some weeks later probably in early February, 1977 to resolve his situation. At that time, a company official informed him that Carr Brothers had decided to reject his claim.

Farrow filed his petition for compensation on April 5, 1977, a hearing was held in June of that year, and the Commission issued its decree on January 9, 1978. After reviewing the testimony of Mr. Farrow and Dr. Bedecs and quoting the text of 39 M.R.S.A. § 63, the Commission found as follows:

This employee testified under cross examination that he never told his foreman about a job injury and, as a matter of fact, never told anyone that he had sustained (a) work related injury. We feel that we are precluded from finding facts of causation based on medical evidence because of the failure to comply with the provisions of the aforesaid Section 63. The limitation is specific. A report must be made or the employer must have knowledge of the work related injury within the thirty day period. This limitation is specific and the Commission, being a creature of statute, may not enlarge on statutory provisions.

In seeking a reversal of the Commission's decree, the appellant argues that he sustained a gradual work-related injury, that such injuries are compensable, and that our decision in Ross v. Oxford Paper Co., Me., 363 A.2d 712 (1976), mandates a finding that the 30-day notice period commenced on December 23, 1976, the day when, according to appellant, his injury "manifested itself to such an extent that (he) was compelled to cease work." Id. at 716.

We disagree. In Ross, the petitioner had worked for 25 years in a paper mill handling large rolls of paper. He had been suffering from seizures of numbness in his hands for some time and was finally forced to stop working altogether due to that ailment. As in this case, the employer defended on the ground that the petitioner had failed to give notice of his claim within the thirty-day period specified in Section 63. In rejecting the employer's position, we held that "the claim period runs from the time compensable injury becomes Apparent." Id., Quoting 3 A. Larson, Workmen's Compensation Law § 78.42(a) (1976). (emphasis supplied). In Ross, it so happened that the disability did not become apparent until the day the petitioner was forced to cease work. Our finding that Ross had suffered a gradual injury did not serve to suspend commencement of the thirty-day claim period until his last day on the job. Indeed, had there been reliable evidence indicating that Ross' injury and its compensable nature were apparent to him prior to his final day of work, a far different case would have been presented.

In the case at bar, the testimony of both Farrow and his own physician demonstrates that at least by December 7, 1976, the injury had become apparent. The appellant was then aware 1) that he was injured and 2) that his disability was almost certainly of a compensable nature. On that day, his own supposition that his injury was work related was confirmed by his physician after a thorough medical examination. ⁵ The degree of his awareness on December 7 was therefore more than sufficient to trigger Section 63's 30-day notice provision.

The question remains whether the appellee can be held to have received notice of Farrow's injury within the 30 days after December 7. The testimony indicates that Farrow discussed his swollen knee with his supervisor on December 6 and again on December 9 after he had spoken with his doctor. However, the testimony also demonstrates that, as the Commission stated, Farrow "never told his foreman about a Job injury and, as a matter of fact, never told anyone that he had sustained (a) Work related injury." (emphasis supplied). Section 63 expressly requires the injured employee to state the Cause of his disability. This requirement is not met simply by informing the employer of the mere fact of an injury; the employer must also receive some indication that the injury might be Work related and therefore compensable. ⁶ Similar notice-of-claim statutes in other jurisdictions have likewise been construed as requiring the employee to communicate the work relatedness of his injury to his employer. Carey v. Travelers Insurance Co., 133 Ga.App. 657, 212 S.E.2d 13 (1975) (employee told supervisor of back pain without mentioning work relation of injury); Complete Auto Transit, Inc. v. Reavis, 105 Ga.App. 364, 124 S.E.2d 491 (1962) (employee told supervisor only that he was consulting a physician regarding back pain); Fenix & Scisson Construction Co. v. Industrial Commission, 27 Ill.2d 354, 189 N.E.2d 268 (1963) (foreman knew only that employee was in the hospital); Sanders v. Richardson, 251 S.C. 325, 162 S.E.2d 257 (1968) (employer knew only that employee was hospitalized); McKinney v. Berkline Corp., Tenn., 503 S.W.2d 912 (1974) (employee told company nurse only that she had a hip ailment). The Commission's finding that the appellant failed to meet this requirement rests on firm evidentiary support.

We do not find persuasive the appellant's argument that under 39 M.R.S.A. § 64 the employer, through Gilman the supervisor, had actual knowledge of the work relatedness of the injury so as to excuse the Section 63 notice requirement. ⁷ This is not a case where the foreman observes an employee suffer an obviously compensable injury, Blue Bird Mining Co. v. Litteral, 314 Ky. 709, 236 S.W.2d 936 (1951), nor is this a case where the employee relates the circumstances...