Leo v. American Hoist & Derrick Co.

• Decision Date: 31 December 1981
• Citation: 438 A.2d 917
• Parties: James LEO v. AMERICAN HOIST & DERRICK COMPANY and National Union Fire Insurance Company.
• Court: Maine Supreme Court

Page 917

438 A.2d 917

James LEO v. AMERICAN HOIST & DERRICK COMPANY and National Union Fire Insurance Company.

Supreme Judicial Court of Maine.

Argued June 12, 1981.

Reargued Nov. 13, 1981.

Decided Dec. 31, 1981.

Joseph L. Bornstein, Kenneth W. Hovermale, Jr. (orally), Portland, for plaintiff.

Preti, Flaherty & Beliveau, Keith A. Powers (orally), Portland, for defendant.

Before McKUSICK, C. J., GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J.

CARTER, Justice.

American Hoist and Derrick Company (American Hoist), the employer, and James Leo, the employee, both appeal from a pro forma decree of the Superior Court (Cumberland County) affirming the decision of the Workers' Compensation Commission. The Commission terminated compensation on the employer's petition for review of incapacity but ordered partial compensation from the time of the employee's return to work until the date of the decree.

James Leo worked as a drop forge hammerman at American Hoist. This job required lifting weights of up to 150 pounds and holding bars of steel for long periods of time. On February 28, 1979, Leo sustained a right thumb injury which arose out of and in the course of his employment with American Hoist. He had previously injured the same thumb while wrestling. By agreement between the parties, the employee received compensation of $244.99 per week for total incapacity based on his average weekly wage from American Hoist of $361.85. Following his discharge from American Hoist in March, 1979 for reasons unrelated to his injury, Leo was out of work until he was employed by Yarmouth Paint Company as a floor manager in September, 1979. This job entailed some lifting and climbing but was primarily clerical, and paid $175 a week, raised to $200 after April 3, 1980.

On July 11, 1979, American Hoist petitioned for review of incapacity and on September 10, 1979, filed a "Certificate Required Before Suspension of Compensation For Review of Incapacity." American Hoist suspended payments on the ground that Leo had resumed work. Leo countered with a "Petition For Resumption of Payment of Compensation" which he contends was filed pursuant to 39 M.R.S.A. § 104-A. That petition noted, inter alia, that the agreement for compensation did not take into account wages earned by Leo at the part-time job he held with Sears, Roebuck and Company while working at American Hoist.

By agreement of the parties, both petitions were consolidated for hearing. The evidence of record includes: the testimony of the employee, medical progress notes and the deposition of Dr. Jean Labelle, medical reports of Drs. Donald Allen and Paul Feldon and a Wage Statement from Sears, Roebuck and Company. The Commissioner's decision of September 24, 1980 found that Leo no longer had any work disability and terminated benefits from the date of the decree. Finding that American Hoist's suspension of payments was based on Leo's employment at Yarmouth Paint Co., the Commissioner granted Leo's petition for resumption of payment to the extent of $124.57 per week from the time he began work at Yarmouth Paint Co. to April 3, 1980 and $107.90 per week from April 3, 1980 to the date of the decree.

On October 6, 1980, Leo requested findings of fact and conclusions of law. The Commissioner evidently responded to this request by ordering the parties to submit proposed findings. American Hoist viewed the decree as "sufficiently detailed to obviate the necessity of any proposed findings" and did not submit any proposed findings. Leo replied to the Commissioner's request a month after the order by stating that he was standing on his memorandum of law filed in May, 1980. Finding this reply unsatisfactory, the Commissioner denied Leo's request for findings of fact and conclusions of law.

Four questions are raised on appeal. These concern: (1) the propriety of the Commissioner's consideration of the conflicting medical evidence concerning Leo's disability; (2) the employer's right to suspend payments; (3) the Commissioner's authority to alter an agreed upon amount of pre-injury wages in light of new evidence and (4) the Commissioner's power to deny requests for findings of fact and conclusions of law.

I. Medical Evidence

Leo asserts that the Commissioner's finding as to the degree of incapacity was error as a matter of law because the Commissioner relied only on the report of Dr. Allen and ignored or disregarded other competent medical testimony in reaching his conclusion concerning the extent of the disability. While the Commissioner's findings on this matter are brief, ¹ we are not convinced that the Commissioner improperly evaluated the medical testimony presented to him.

The extent of a worker's incapacity is a question of fact. Madore v. Bangor Roof & Sheet Metal Co., Me., 428 A.2d 1184, 1188 (1981). In carrying out his responsibility as fact finder, the Commissioner must weigh competing evidence and is not required to accept or reject the whole testimony of particular medical experts. Gordon v. Aetna Casualty & Surety Co., Me., 406 A.2d 617, 619 (1979); Bradbury v. General Foods Corporation, Me., 218 A.2d 673, 674 (1966).

In the instant matter, the Commissioner reviewed evidence from three different physicians regarding Leo's condition. Dr. Labelle, the treating physician, indicated in his deposition that as of July 18, 1979, Leo was capable of doing light work. Light work in this case included work heavier than the type Leo performed at Yarmouth Paint Company but not of the type required of a drop forge operator. At the December, 1979 deposition, Labelle also testified that Leo was still incapable of performing the latter duties. On cross-examination, Labelle said that Leo's work-related thumb injury "procrastinated" Leo's earlier light thumb injury and that the prior injury also restricted his ability to "heavy grasp" or pinch.

The report of Dr. Feldon from an examination in March, 1980, estimated the functional loss of the right hand at five percent based on the limitation of the thumb motion and loss of pinch strength. The loss of grip strength was viewed as excessive and not substantiated by the other clinical findings.

Dr. Allen, in his report on an examination of Leo in July, 1979, stated that he had received and reviewed medical reports including those of Dr. Labelle forwarded to him by the insurance adjuster. Allen, in his addendum to the original report, stated that Leo could return to light work following the examination and to full duty status without limitation four weeks thereafter. Allen also indicated, as did Labelle, that exercise and usage of the thumb would serve to increase its strength.

In light of this evidence, the Commissioner's finding that Leo was no longer disabled as of the date of the decree is supported by competent evidence. Moreover, it is far from clear that the Commissioner ignored evidence other than that presented in Dr. Allen's report. The Commissioner noted the other reports and the deposition in his recital of the evidence. He also commented generally that the evidence indicated a minimal residual injury; this conclusion is consistent not only with Allen's report but also with the report of Dr. Feldon. The Commissioner need not recite and analyze in minute detail all the medical evidence of record to explain the evidentiary basis of his decision. See Parent v. Great Northern Paper Co., Me., 424 A.2d 1099, 1101 (1981). We find no basis to believe that the Commissioner improperly disregarded competent and probative evidence in reaching his decision; the language of the decree is consistent with his finding Dr. Allen's report the most persuasive.

Leo's contention that the record lacked the required comparative evidence is equally deficient. The requirement of comparative medical evidence can be satisfied in certain instances when an examining physician acquaints himself with the worker's prior condition by review of medical reports made by other physicians. Van Horn v. Hillcrest Foods, Inc., Me., 392 A.2d 52, 54-55 (1978). Moreover, the need for such evidence may not be required when, in a review of incapacity, it is determined that the claimant no longer has any physical disability. Curtis v. Bridge Construction Corp., Me., 428 A.2d 62, 64 (1981). In light of Dr. Allen's use in his report of Dr. Labelle's medical records and the Commissioner's characterization of Leo's current condition, there is adequate evidence to support the Commissioner's finding.

II. Suspension of Benefits

American Hoist contends, on its appeal, that the Commissioner incorrectly awarded partial benefits to Leo for the period between the date of re-employment and the issuance of the decree. The basis of this contention is that since Leo has "resumed work" the suspension of benefits was proper and because the Commissioner ultimately found that Leo had no incapacity, the retroactive award of partial compensation was erroneous. As a subsidiary proposition of law, the employer contends that the propriety of the suspension under 39 M.R.S.A. § 100 (repealed and replaced by P.L.1981, c. 514, § 4, effective September 18, 1981) is not affected by a subsequent determination by the Commissioner, on petition for review, that the employee was partially disabled at the time of the suspension.

The employer's position is that a suspension is improper once the employee has in fact returned to work only if the suspending employer fails to comply with the procedural requirements specified in § 100; that is, the filing by the employer of a Petition for Review and the filing of the required Certificate that the employee has returned to work. Once these requirements are met, the employer asserts that it is liable from the date of suspension only for that level of benefits resulting from the Commissioner's ultimate determination of the employee's level of disability on the then pending Petition for Review. Thus, it is contended that the Commissioner...