Gullifer v. Granite Paving Co.

• Decision Date: 10 March 1978
• Citation: 383 A.2d 47
• Parties: Elton B. GULLIFER v. GRANITE PAVING COMPANY and Maine Bonding and Casualty Co.
• Court: Maine Supreme Court

Page 47

383 A.2d 47

Elton B. GULLIFER v. GRANITE PAVING COMPANY and Maine Bonding and Casualty Co.

Supreme Judicial Court of Maine.

March 10, 1978.

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

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

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

GODFREY, Justice.

The employer appeals from a pro forma Superior Court decree affirming an order, dated May 27, 1976, of the Industrial Accident Commission. That order awarded Elton B. Gullifer, the employee-appellee, compensation payments from December 22, 1974, "until further order."

The following facts are undisputed: On March 19, 1971, while working as controller for appellant Granite Paving Company, appellee slipped and fell, injuring a disc in his back. Unable to work for some time, he entered into a voluntary compensation agreement with his employer, as authorized by 39 M.R.S.A. § 94, by which he received payments for 54/5 weeks for total incapacity. Pursuant to 39 M.R.S.A. § 54, ¹ the amount paid him during that time was equal to two-thirds of his average gross weekly wage or $72.92 per week. At the end of 54/5 weeks appellee returned to his former job with Granite and, although experiencing some discomfort, continued to work full time for over two years until August, 1973. He then worked part time until October, 1973, when at age fifty-six he discontinued work.

On December 22, 1974, as the result of a sneeze, appellee began to experience increased back pain. His physician testified that the symptoms were caused by a hernia of the nucleus pulposus at the level of L-5 S1. He indicated that appellee's condition was the result of aggravation of the 1971 injury.

On June 13, 1975, Mr. Gullifer brought a "Petition for Further Compensation" against Granite claiming further compensation for total incapacity alleged to result from the 1971 injury to his back. The Commissioner found, "as a matter of law," that from December 22, 1974, the date of the sneeze, "until further order," appellee was entitled to receive $72.92 per week. The Commissioner regarded "the issue in this case" as being whether the sneeze on December 22, 1974, was an independent intervening cause of the onset of symptoms or whether the onset of symptoms flowed from the original injury. That question of fact the Commissioner decided in favor of appellee, and his decision in that regard is supported by adequate evidence.

There was also testimony before the Commission concerning appellee's heart condition. Mr. Gullifer testified that as long ago as 1943 he had suffered from heart disease. He indicated that before the sneeze his back did not preclude him from carrying out the functions he once performed as controller at Granite. The doctor described his patient's condition as "moderately severe heart disease" and stated that this infirmity was the "primary cause of limitation" on his activity. However, the doctor testified that before the sneeze incident the back condition alone would have prevented appellee from making a living doing heavy work and that in the period following the sneeze the back condition alone would have precluded employment.

Appellee also indicated that after leaving Granite in October, 1973, more than a year before re-injuring his back, he began to draw total disability payments under the federal Social Security Act. The stated reason for that total disability was his heart condition. Appellant testified that when he left work in October of 1973 he planned to return to work but that his back condition precluded his return.

The employer contends on appeal that the Commissioner erred in finding that on December 22, 1974, the appellee became incapacitated for work within the meaning of the Workmen's Compensation Act. Because Mr. Gullifer had left employment over a year before the sneezing incident and was receiving total disability payments under the Social Security Act, appellant argues that appellee is not entitled to compensation for incapacity caused by aggravation of the 1971 injury.

We find no sound basis for importing into the Act the exception that appellant asks us to read into it. Starting with the Commissioner's finding, supported by evidence, that the symptoms in 1974 were the result of the compensable injury in 1971, appellant asks us to hold that the additional compensation normally available to an employee as a result of further disability arising out of an earlier compensable injury must be denied where the employee is not working at the time he suffers the further disability. There can be no question that if appellee had been still working for Granite on December 22, 1974, the 1974 incapacity found to result from his 1971 injury would have been compensable. Walker's Case, 122 Me. 387, 120 A. 59 (1923). Moreover, by application of 39 M.R.S.A. § 54 and § 2(2)(A), his compensation would have been based on "the amount which he was receiving at the time of the injury"; that is, on March 19, 1971. The injury is compensable even though a pre-existing heart condition may have contributed to his disability either in 1971 or 1974. Wadleigh v. Higgins, Me., 358 A.2d 531 (1976); Gagnon's Case, 144 Me. 131, 65 A.2d 6 (1949). Loss of earning capacity, not actual loss of income, is the basis for any award under the Act. Clark's Case, 120 Me. 133, 113 A. 51 (1921). In Willette v. Statler Tissue Corp., Me., 331 A.2d 365 (1975), we dealt with the situation arising where an employee who works for successive employers sustains during his first employment an injury that is the sole cause of a recurrence of symptoms manifested while he is working for the second employer. We held the employer at the time of the original injury liable for the compensation for incapacity resulting from the recurrence.

Decisions of this Court holding that there is no compensable loss under the Act if the injurious event does not diminish a claimant's pre-injury capacity to earn a living are not applicable to the...