Lapan v. Berno's Inc., 131-78

• Decision Date: 10 September 1979
• Docket Number: No. 131-78,131-78
• Citation: 137 Vt. 393,406 A.2d 390
• Court: Vermont Supreme Court
• Parties: Wayne F. LAPAN v. BERNO'S INC. and Travelers Insurance Company.

Page 390

406 A.2d 390

137 Vt. 393

Wayne F. LAPAN v. BERNO'S INC. and Travelers Insurance Company.

No. 131-78.

Supreme Court of Vermont.

Sept. 10, 1979.

William R. Brooks of Tyler & Bruce, St. Albans, for plaintiff.

Robert A. Mello of Downs, Rachlin & Martin, South Burlington, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BILLINGS, Justice.

This appeal results from an award of benefits to the claimant-appellee (hereinafter referred to as the claimant) under the Workmen's Compensation Act, 21 V.S.A. §§ 601-709. The issue certified here pursuant to 21 V.S.A. § 672 is whether the facts found below constitute a compensable claim under the Act. We reverse.

The claimant was employed by the defendant Berno's Inc. installing appliances, such as washers and freezers, which involved taking the appliances up and down stairs. Of necessity, the claimant's duties during his two years of employment regularly included heavy lifting. In the summer of 1972, the claimant fell off a truck in the course of his employment and injured his shins and right hip. In August, 1972, the claimant experienced constant lower back pain, and on September 14, 1972, the claimant ceased his employment due to extreme discomfort. Subsequently, the claimant sought Workmen's Compensation benefits, claiming that he had been injured by an accident in the course of and arising out of his employment. 21 V.S.A. § 618.

The claimant's doctor diagnosed his condition as an entrapment or disc syndrome secondary to a disc extrusion or laceration causing back and leg pain. X-ray examination showed that the claimant had local dysontogentic arthritis which resulted in progressive and degenerative changes in his back. At hearing the claimant's doctor stated that the claimant's condition predated the fall from the truck and that it was possible but not probable that the disc was ruptured at the time of his fall at work. No other accident at work, other than the truck fall, was shown at trial.

The Commissioner of Labor and Industry (hereinafter the Commissioner), in issuing his findings of fact, conclusions and decision, specifically found that the fall from the truck did not cause the claimant's disability. Nevertheless, the Commissioner awarded disability benefits on the basis that the continuous heavy lifting aggravated the degenerative changes in the claimant's back to the point where he became disabled. The Commissioner concluded that this amounted to a "personal injury by accident, . . . which arose out of and in the course of his employment" within the meaning of 21 V.S.A. § 618. The defendants claim that the evidence is legally insufficient to support this conclusion.

The burden of establishing facts showing that a claimant's injury comes within the scope of the Workmen's Compensation Act is on the claimant, and he has the burden of showing the causal connection between the accident causing the injury and his employment, Goodwin v. Fairbanks, Morse & Co., 123 Vt. 161, 166, 184 A.2d 220, 223 (1962); Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 176-77, 71 A.2d 569, 572 (1950); Brown v. Bristol Last Block Co., 94 Vt. 123, 125, 108 A. 922, 923 (1920). If a claimant fails to meet his burden of proof he is not entitled to compensation under the Act. Hurwitz v. Camp Derry, Inc., 134 Vt. 306, 307, 360 A.2d 53, 54 (1976). In the case at bar the claimant's first hurdle was to establish that his injury was caused by an accident arising out of his employment. An accident has been construed to mean "an 'unlooked for mishap or an untoward...