Fecteau v. Rich Vale Const., Inc.

• Decision Date: 12 December 1975
• Citation: 349 A.2d 162
• Parties: Richard FECTEAU v. RICH VALE CONSTRUCTION, INC. &/or St. Paul Fire Insurance Company.
• Court: Maine Supreme Court

Page 162

349 A.2d 162

Richard FECTEAU v. RICH VALE CONSTRUCTION, INC. &/or St. Paul Fire Insurance Company.

Supreme Judicial Court of Maine.

Dec. 12, 1975.

Jolovitz & Niehoff by Lester T. Jolovitz, Waterville, for plaintiff.

Preti & Flaherty by Thomas A. Cox, Portland, for defendants.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, jJ.

WERNICK, Justice.

This is an appeal by employer Rich Vale Construction, Inc. and its insurance carrier St. Paul Fire Insurance Company from a Superior Court judgment which affirmed, pro forma, a decree of the Industrial Accident Commission concerning a petition of the employer for review of incapacity filed, as amended, July 18, 1974. The Commission decided that compensation for partial incapacity be paid to the employee Richard Fecteau at the rate of $53.14 per week

'. . . as of July 30, 1974 . . . to continue thereafter in accordance with the provisions of the Act and annual adjustments as provided by the Act.'

The employee, now aged 39, has been a carpenter during most of his adult life. While engaged in carpentry work on a construction site he sustained a compensable injury to his right ankle for which he was being paid compensation for total incapacity under an approved agreement.

In January, 1974 the employee became physically able to do 'light work' nor involving climbing ladders or walking on rough or uneven ground. His physician advised him to undertake doing 'some kind of light duty' for the purpose 'at least . . . to find out how much he can do' by trying to

'. . . walk around on a level floor and perhaps . . . increase the time, duration of the time for walking, . . ..'

Accordingly, on June 28, 1974 the employee took a job as a janitor at a school, working a five day week, eight hours a day, for a salary of $90.00 per week. He has been at this janitorial job at all times here material. The duties, which included dusting and washing floors, trash disposal and other general janitorial maintenance work, required extensive walking, but the employee had opportunities for rest when necessary.

The employer asserts, as an initial contention on appeal, that the Commissioner erred in fixing the extent of the employee's partial incapacity in terms of weekly compensation on the basis that the employee's earnings at his janitorial job reflect the correct measure of the employee's current ability to earn (within the meaning of 39 M.R.S.A. § 55). This is claimed to be error of law, as lacking evidentiary support, because the employee had failed to come forward with evidence that his reasonable efforts to obtain work had shown that the janitorial job was the highest income producing job, compatible with his limited physical ability to work, which was available to him. In support of this position the employer relies upon Connelly's Case, 122 Me. 289, 119 A. 664 (1923), as clarified in Pelchat v. Portland Box Co., Inc., et al, 155 Me. 226, 153 A.2d 615 (1959) and subsequently followed in Pelletier v. Pinette, Me., 259 A.2d 25 (1969), Martel v. United States Gypsum Company, Me., 329 A.2d 392 (1974) and Dailey v. Pinecap, Inc., et al, Me., 321 A.2d 492 (1974).

In all of these prior decisions this Court had confronted a situation in which at the time the employer petitioned for review of the incapacity of the injured employee, the employee was not engaged in remunerative employment. The employer was claiming that, despite the employee's non-employment, his recovery of a partial physical ability to perform remunerative work justified an adjudication of partial, not total, incapacity.

The employer correctly states that our long accepted rule as to such circumstances is that once the employer has produced evidence warranting a Commission finding that the employee has regained a partial physical ability to do gainful work, to be entitled to an adjudication that he nevertheless remains totally incapacitated, the employee has

'. . . the burden of going forward with proof that he had made reasonable efforts to obtain such work and had failed, . . ..' Martel v. United States Gypsum Company, supra (p. 396)

The instant situation, however, is markedly different. Here, the employee who has regained a limited physical ability to engage in gainful employment is in fact so employed and, therefore, no potential question of total incapacity exists. The only issue to be resolved is the extent of the employee's avowed partial incapacity in terms of weekly compensation.

Counsel have called to our attention no prior decision of this Court dealing with the allocations of the respective burdens of going forward with evidence in such context, and our own research has disclosed none. ¹ We here address the subject for the first time.

When the employee who has recovered partial physical ability to perform remunerative work is in fact not thus employed at the time of the employer's petition for review of incapacity, total incapacity to earn remains a viable alternative of decision by virtue of the holdings of this Court in Ray's Case, 122 Me. 108, 119 A. 191 (1922); Levesque v. Shorey, Me., 286 A.2d 606 (1972); Bolduc v. Pioneer Plastics Corporation, Me., 302 A.2d 577 (1973); Overlock v. Eastern Fine Paper, Inc., Me., 314 A.2d 56 (1974); Foster v. Bath Iron Works Corporation, Me., 317 A.2d 11 (1974). These decisions establish that the employee's recovery of a partial physical ability to work does not, per se, fix the legal status of the employee as that of partial, rather than total, incapacity. When the employee is not gainfully employed, there must be further inquiry concerning the reason for such non-employment since, if there is an

'. . . unavailability, in or near the community in which he lives, of the type of work commensurate with his limited capacity, and ability to perform services which are so limited in quality, dependability, or quantity that a reasonable stable market for them does not exist, . . .' See: Levesque v. Shorey, Me., 286 A.2d 606, 610, 611 (1972),

the injured employee continues to be totally incapacitated in legal contemplation notwithstanding his recovery of a partial physical ability to perform remunerative work.

Because in such situation the non-employment of the injured employee leaves the issue of total incapacity a rational alternative of decision, our prior decisions, above cited, have promulgated the rule that once the employer petitioning for review of incapacity has made a showing warranting a finding that the employee has recovered a partial physical ability to engage in gainful work, the employer has made a prima facie case for partial, rather than total, incapacity. If the employee would have an adjudication of total incapacity, the employee then has the burden to go forward with evidence that

'he had made reasonable efforts to obtain . . . work (within the limited physical ability to work) and had failed, either because such work was unavailable in the area or . . . was unavailable to him by reason of his injury.' Martel v. United States Gypsum Company, Me., 329 A.2d 392, 396 (1974)

The rationale of this approach, directed as it is to the evaluation of whether total incapacity remains a viable alternative of decision, is stated in Pelchat v. Portland Box Co., Inc., supra. There is

'. . . no practical need for requiring the petitioning employer to parade before the Commission a procession of employment officers, personnel directors and others who may know of specific job openings which involve only 'light work' and who can indicate the wages being offered therefor. If the employee has diligently and in good faith made reasonable efforts to find 'light work', he is or should be in a better position than the petitioner to know whether there is anything available that he can do and what he could earn thereby. It is neither unreasonable nor unfair to allow the burden of going forward with evidence to shift to him, once the employer has made out what amounts to a prima facie case (that the employee has recovered a partial physical ability to engage in remunerative work).' Pelchat v. Portland Box Co., Inc., 155 Me. 226, 230, 153 A.2d 615, 618 (1959)

This reasoning, however, is inappropriate to the present context. Here, precisely because the injured employee has already undertaken gainful employment his legal status as partially, rather than totally, incapacitated is definitively settled; that only question rationally open for decision is the extent of the partial incapacity in terms of weekly compensation. In such circumstances the employee's actual performing of remunerative work gives adequate prima facie indication of the extent of his present ability to earn...