Grant v. Georgia-Pacific Corp., GEORGIA-PACIFIC
| Decision Date | 22 November 1978 |
| Docket Number | GEORGIA-PACIFIC |
| Court | Maine Supreme Court |
| Parties | Bernard GRANT v.CORP. |
David J. Fletcher (orally), Jane M. Eaton, Calais, for plaintiff.
Mitchell, Ballou & Keith by Kevin M. Cuddy, Bangor (orally), for defendant.
Before POMEROY, WERNICK, DELAHANTY, GODFREY and NICHOLS, JJ.
On October 11, 1973, appellant incurred a work-related injury to his back while employed by appellee. As a result of the injury, an agreement was reached and later approved, whereby appellee compensated appellant for a total disability. Payments had been made pursuant to that agreement for less than a year when appellee sought a review of incapacity. Following a hearing, the Industrial Accident Commission 1 (Commission) entered a decree reducing appellant's disability to 25%. His weekly payments were reduced accordingly. No appeal was taken from that decree.
On December 12, 1975, appellee sought a second review of appellant's work capacity. After two hearings, the Commission found that appellee had satisfied its burden of showing appellant's substantial work capacity and, therefore, terminated all compensation to appellant. The record is silent as to whether any appeal was taken.
In July, 1976 appellant underwent the last in a series of operations on his back. Finding he was still unable to work, appellant filed for further compensation alleging total incapacity arising from the injury incurred on October 11, 1973. Two more hearings were held before the Commission, after which appellant was found to be totally disabled. Compensation was ordered at the rate of $88.52 per week.
The final stage of the events leading to this appeal occurred on March 21, 1977 when appellee filed its third petition for review of incapacity.
At the hearings before the Commission, appellant's physician testified that appellant "May try (some work) Without heavy lifting " and that "I think it may be a good idea for him to try and see what he can do." 2 From the testimony of the physician, the Commissioner concluded that appellant was "Not wholly without work capacity from a medical point of view and he Might be able to perform certain jobs If he earnestly attempted to do so." (Emphasis supplied). Having reached such conclusion, the Commission downgraded appellant's disability from 100% To 80% And cut his weekly payments to $56.64.
Appellant thereupon petitioned for a pro forma decree in the Superior Court, Washington County, from which he now appeals.
We sustain the appeal.
Appellant raises two related issues which he claims require reversal of the Commission's order. Essentially, appellant argues that neither the medical testimony that he "May try" some work, nor the Commission's finding that "He might be able to perform certain jobs," are sufficient to support a conclusion that he has regained work capacity.
Recent pronouncements by this Court have made it clear that a petition for review of incapacity addresses itself solely to "(a) change of circumstances since the time of the earlier determination . . . of the employee's disability . . . ." Van Horn v. Hillcrest Foods, Me., 392 A.2d 52 (1978), Citing Dufault v. Midland Ross of Canada, Ltd., Me., 380 A.2d 200 (1977). As the moving party, the employer carries the burden of showing that such a change has in fact occurred. Lancaster v. Cooper Industries, Me., 387 A.2d 5 (1978). To satisfy its burden, the employer must establish through medical testimony that an employee has "Regained an ability to perform some work ordinarily available in the community." Michaud v. Thayer Hospital Associates, Me., 391 A.2d 1193 (1978); See also Van Horn v. Hillcrest Foods, supra.
In reviewing the decree in this case, we are not unaware of the well-settled rule that this Court will not disturb a factual finding 3 by the Commission absent a showing that it lacks competent evidence to support it. Dunkin Donuts of America v. Watson, Me., 366 A.2d 1121 (1976). We point out, however, that although slender evidence may be sufficient, it must be evidence, not speculation, surmise or conjecture. Overlock v. Eastern Fine Paper, Me., 314 A.2d 56 (1974).
Assuming that the Commission's finding that appellant "Might " be able to do some work is sufficient to support a conclusion of regained work capacity, we turn to the question of whether medical...
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Townsend v. Maine Bureau of Public Safety
...compensation. 2 Recognizing that the Commissioner's findings of fact are final when supported by competent evidence, Grant v. Georgia-Pacific Corp., Me., 394 A.2d 289 (1978), the Bureau apparently argues that when compensation is claimed for a mental disability the evidence must show a part......
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Hamilton v. Dexter Shoe Co.
...no greater certainty than the physician's conclusion that an employee "may try" to work which we found inadequate in Grant v. Georgia-Pacific Corp., Me., 394 A.2d 289 (1978). Since the employer did not meet its burden of proof, the commissioner should have considered the pain in the employe......
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Lelievre v. Pitt Const., Inc.
...return to work. Such testimony does not constitute evidence to support a finding of recovery of work capacity. See Grant v. Georgia-Pacific Corp., Me., 394 A.2d 289 (1978). In view of the employee's burden of proof on a petition for further compensation and the deference that the Law Court ......