Houle v. Tondreau Bros. Co.

• Decision Date: 04 October 1952
• Citation: 148 Me. 189,91 A.2d 481
• Parties: HOULE v. TONDREAU BROS. CO. et al. (two cases).
• Court: Maine Supreme Court

Page 481

91 A.2d 481

148 Me. 189

HOULE v. TONDREAU BROS. CO. et al. (two cases).

Supreme Judicial Court of Maine.

Oct. 4, 1952.

Sherwood Aldrich, Brunswick, for appellant.

James R. Desmond, Portland, for appellees.

Before THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

FELLOWS, Justice.

These two cases heard together come to the Law Court on appeal by the petitioner (employee) from pro forma decrees of the Superior Court for Cumberland County affirming decrees of the Industrial Accident Commission. The Commission dismissed the two petitions, asking for award of compensation, for failure to sustain the burden of proof. Each petition alleged a separate and distinct accident. Both were heard together without objection. The first accident was alleged in the first petition (filed with the Commission on January 10, 1952) as having taken place on January 18, 1951. The second petition (filed with the Commission on January 29, 1952) alleged an accident on April 16, 1951.

Leo J. Houle, the petitioner, worked as a meat cutter in the employ of Tondreau Bros. Company at Brunswick, Maine. His duties included care of meats, cutting meats, and waiting on customers. He also hung meat on hooks as it was unloaded from trucks. On January 18, 1951, he went into the refrigerator to get hooks, and on coming out slipped and fell down injuring his right foot. He informed the manager that he must go to his home, and he went home where he bathed his right foot in hot water. Two days after, Dr. Earle Richardson, when consulted, found the Achilles tendon 'strained and some fibres possibly broken.' Dr. Richardson strapped up his foot. The petitioner was out of work for two and one-half days only, but stated that he had difficulty in walking. Dr. Richardson offered no opinion that any subsequent disability was connected with the original injury. On April 16, 1951, the employee Houle attempted to hang up a 'chuck' of beef weighing 70 or 80 pounds, and the beef fell on the instep of his other (left) foot. The foot swelled, and he put his left foot in hot water. He did not go to a doctor but he told Louis Tondreau about it. He lost no time from his work because of the second accident.

On April 22, 1951, Houle consulted Dr. Morris E. Goldman, an orthopedic surgeon, about his right foot. He complained of pain in the right foot in the region of his ankle. X-rays were taken. He was given medication. On a later visit to the doctor, Houle told Dr. Goldman about pain in his other (left foot) and received Anacin pills to be taken for pain. It was not until August 1951 that Houle ceased to work as usual.

It appears, and is admitted, that Leo J. Houle had a congenital deformity in both his right and left foot. Dr. Goldman said 'both feet were of a certain type that ultimately would give him trouble, in that they were the spastic everted--that is, turned out. By out, I mean the top of the foot is turned internally and the bottom of the foot is turned outwardly.' Dr. Goldman said also, regarding any pain he may have had, that surgery would relieve. 'I expected to relieve his pain to be sure, and I also expected to correct the existing deformities in both feet to avoid trouble later on.' Dr. Goldman could not recall that Houle made any complaint of pain in his left foot. Dr. Goldman recommended surgery, however, to the left foot because of the deformity. Dr. Goldman found no evidence of any injury to either foot. 'In the course of the examination, his feet were so deformed that I suggested to him, where his work required standing up a great deal, he should consider some form of surgery to his feet to avoid further trouble. He told me he would think it over and came back later on and asked me to arrange for surgery for him.'

Dr. Goldman stated that he found no objective symptoms indicating any condition other than the 'congenital spastic everted,' and that he did not 'clearly in my mind' have any opinion that the alleged accident 'accelerated the need for surgery.'

The first petition for award of compensation filed by Leo J. Houle was dated January 9, 1952, and alleged that on January 18, 1951 he 'slipped upon the floor of the meat room of Tondreau Bros. Company and fell down thereby spraining my right foot and ankle * * * from which I suffered intense pain, which continued until August 10, 1951, when I was unable to work longer and after which an operation on my right foot became necessary.' The second petition for award of compensation filed by Leo J. Houle was dated January 21, 1952, and alleged that 'the chuck of beef fell upon my left foot knocking me down * * * causing an injury to my left foot which resulted in great pain which became so severe that on August 10, 1951, I was unable to work and after which an operation was performed on my left foot. That to this date I have been unable to work because of said injury, since August 10, 1951.' An answer was duly filed to each of the petitions denying all of the allegations.

The two foregoing petitions were heard together and the Commission, after full hearing, made a long, carefully written analysis of all medical and all other testimony applicable to each petition, and dismissed each petition for failure, on the part of the petitioner, to prove that he received injury by accident arising out of and in the course of the employment and that the medical attention and incapacity was due to the accidental injury.

The question presented to the Law Court on these two appeals is whether the Commission was in error in its dismissal of both (or either) of the petitions because of failure to sustain the burden of proof.

The Workmen's Compensation Act says, R.S.1944, c. 26, § 37: 'If from the petition and answer there appear to be facts in dispute, the commissioner shall then hear such witnesses as may be presented, or by agreement the claims of both parties as to such facts may be presented by affidavits. If the facts are not in dispute, the parties may file with the commission an agreed statement of facts for a ruling upon the law applicable thereto. From the evidence or statements thus furnished the commissioner shall in a summary manner decide the merits of the controversy. His decision, findings of fact and rulings of law, and any other matters pertinent to the questions so raised shall be filed in the office of the commission, and a copy thereof attested by the clerk of the commission mailed forthwith to all parties interested. His decision, in the absence of fraud, upon all questions of fact shall be final.'

At the hearing before the Industrial Accident Commission the petitioning employee was the moving party and upon him was the burden to prove the allegations in his petition and all elements necessary to support his claims for compensation, such as the employment, the accident arising out of and in the course of the employment, the resulting injury, and the causal connection between the condition which he alleges disabled him and the alleged accident. 'Surmise, conjecture, guess or speculation are not sufficient'. Westman's Case, 118 Me. 133, 106 A. 532, 535; Hawkins v. Portland Gas Co., 141 Me. 288, 43 A.2d 718; Boyce's Case, 146 Me. 335, 81 A.2d 670; McNiff v. Town of Old Orchard Beach, 138...