Gorrie v. Elliott Jordan & Son, Inc.
| Decision Date | 13 December 1979 |
| Parties | Brendan W. GORRIE v. ELLIOTT JORDAN & SON, INC., and American Mutual Liability Insurance Company. |
| Court | Maine Supreme Court |
Sunenblick, Fontaine & Reben by Donald F. Fontaine (orally), Stephen P. Sunenblick, Portland, for plaintiff.
Mitchell, Ballou & Keith by Kevin M. Cuddy (orally), Bangor, for defendants.
Before McKUSICK, C. J., and POMEROY, WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.
On October 31, 1977 appellant Brendan W. Gorrie sustained an injury to his back in the course, and arising out, of his employment with appellee Elliott Jordan & Son, Inc. Under an approved agreement he was paid compensation for total incapacity at the rate of $145.62 per week commencing as of November 3, 1977.
On April 7, 1978, the employer filed with the Worker's Compensation Commission a Petition for Review of Incapacity in which it was expressly stated that "(p) ending hearing on this Petition, compensation has not been suspended." After a hearing, held initially on May 17, 1978 and continued on July 13, 1978, the Commission issued a decision on December 1, 1978. The decision said plainly and specifically that it
"relates to a Petition for Review filed by the employer on April 7, 1978." (emphasis added)
The decision further stated that the worker "is At present being compensated under an Agreement approved March 3, 1978 . . ." (emphasis added) for total incapacity, this statement being consistent with the employer's representation in the April 7, 1978 Petition that compensation had not been suspended.
The Commission's decision adjudicated that "as of the time of the last hearing in July 1978", the worker "had recovered 75% Of his pre-accident work capacity." Compensation was ordered paid for partial disability, at the rate of $36.38 per week commencing December 1, 1978.
From the judgment entered pro forma in the Superior Court on the Commission's decision the worker has appealed to this Court.
We deny the appeal.
As his first point on appeal, the worker raises an issue arising from circumstances outside the employer's April 7, 1978 Petition for Review. These circumstances are that on May 12, 1978 the employer filed with the Commission a document entitled "Amended Petition for Review of Incapacity" which repeated the allegations of the April 7th Petition except that the prior statement of a non-suspension of compensation payments was changed to read:
"Pending hearing on this Petition, compensation was suspended on May 9, 1978."
A document entitled "Certificate Required Before Suspension Of Compensation On Petition For Review Of Incapacity" was filed with the May 12th "Amended Petition." This "Certificate" was signed by the employer's attorney and contained the statement:
"The petitioner hereby certifies that the above-named employee: (xx) Has left the State."
At the hearing on May 17, 1978 the attorney for the worker made mention of these additional circumstances and asked the Commission (1) to decide that the certificate was defective on its face, for failure to comply with the requirements of 39 M.R.S.A. § 100 1 and, therefore, that the employer impermissibly suspended payment of compensation; and (2) to order, as the remedy for the violation, that the employer make an "immediate reinstatement of benefits" and also pay a "penalty of $25.00 per day . . ." as provided by 39 M.R.S.A. § 104A, subsection 2. The Commissioner responded:
At the continued hearing on July 13, 1978 neither the attorneys nor the Commissioner referred to the "Certificate" issue or to the fact that a ruling on the question had not yet been made.
The worker now asks this Court to decide whether his compensation benefits were "properly suspended by the . . . (employer's) filing with the Commission of an unsigned, unsworn certificate indicating only that the . . . employee has left the State."
We conclude, however, that we cannot address the issue in this appeal.
As we have already mentioned, the appeal before us is taken from a decision of the Commission, embodied in a Superior Court judgment entered pro forma on it, which states in plain terms that it decides That Petition for Review the employer filed on April 7, 1978. The scope of the decision as limited strictly to the April 7, Petition is further manifested by the express statement in the decision, in conformity with the April 7th Petition's representation of a Non-suspension of compensation payments pending decision, that "at present" the worker is "being compensated" for total incapacity under an...
To continue reading
Request your trial
-
Timberlake v. Frigon & Frigon
...legal concepts, support his decision, 2 testing the assumed findings by the clearly erroneous standard. Gorrie v. Elliott Jordan & Son, Inc., Me., 408 A.2d 1008, 1011 (1979). We must next determine the proper standard of review. Where, as here, the facts are undisputed, we have characterize......
-
Bowie v. Delta Airlines, Inc.
...must be held clearly erroneous.' " Gallant v. Boise Cascade Paper Group, 427 A.2d 976, 977 (Me.1981) (quoting Gorrie v. Elliott Jordan & Son, 408 A.2d 1008, 1011 (Me.1979)). Because the hearing officer may reasonably have concluded from the evidence presented that Bowie's retirement was vol......
-
Daley v. SPINNAKER INDUSTRIES, INC.
...must be held clearly erroneous.'" Gallant v. Boise Cascade Paper Gr., 427 A.2d 976, 977 (Me.1981) (quoting Gorrie v. Elliott Jordan & Son, 408 A.2d 1008, 1011 (Me.1979)). When a party requests and proposes findings of fact, however, we "review only `the factual findings actually made and th......
-
Nadeau v. Town of South Berwick
...decision, and we inquire whether on the evidence such factual determinations must be held clearly erroneous. Gorrie v. Elliott Jordan & Son, Inc., Me., 408 A.2d 1008, 1011 (1979). Cf. Atlantic Acoustical & Insulation Co. v. Moreira, Me., 348 A.2d 263, 265-66 (1975) (absent request for findi......