Levesque v. Shorey

• Decision Date: 28 January 1972
• Citation: 286 A.2d 606
• Parties: Delphis LEVESQUE v. Arnold H. SHOREY and/or Employer's Liability Assurance Corp.
• Court: Maine Supreme Court

Page 606

286 A.2d 606

Delphis LEVESQUE v. Arnold H. SHOREY and/or Employer's Liability Assurance Corp.

Supreme Judicial Court of Maine.

Jan. 28, 1972.

Rudolph T. Pelletier, Madawaska, for plaintiff.

Mitchell & Ballou, by John W. Ballou, Bangor, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

This is an appeal from a pro forma decree of the Superior Court under 39 M.R.S.A. § 103 incorporating as it must the decree of the Industrial Accident Commission rendered on March 22, 1971.

On October 30, 1968 Delphis Levesque while employed by Arnold H. Shorey sustained a compensable injury when a tree shrub fell and struck him on the head and left shoulder. The parties entered into an agreement, approved on January 22, 1969 by the Commissioner of Labor and Industry pursuant to 39 M.R.S.A. § 94, which provided for the payment of workmen's compensation benefits at the rate of $65.17 per week while the incapacity for work resulting from the injury was total. 39 M.R.S.A. § 54.

On July 8, 1969 the employer and insurance carrier (the appellants) filed a petition for review of incapacity pursuant to 39 M.R.S.A. § 100 on the ground that Levesque was no longer totally incapacitated for work. Hearing on the petition was held on October 9, 1969. John F. McGinn, an orthopedic surgeon practicing in Bangor testified respecting his examination of the claimant on July 15, 1969 and stated as his opinion that 'Mr. Levesque might gradually start light work as of the date of examination, but that he would be disabled partially at least until September, and maybe longer.' (Emphasis ours). The plaintiff at that hearing testified that he did work part time from July 10, 1969 to September 3, 1969 and was thereafter working full time for the Province of Quebec. His employment with the provincial government consisted of doing light work such as weighing sand trucks or acting as a surveyor's helper. The first specifically involved looking at the scale, writing the weight in figures upon a slip and delivering the slip to the truck driver. The second merely meant that he would hold the tape while the surveyor would perform his duties. His governmental pay brought in $92.00 per week, whereas his pre-accident weekly remuneration as a woodcutter and wood skidder operator was $136.66. The Commissioner's finding dated October 28, 1969 reads as follows:

'On the basis of the evidence we find that Mr. Levesque's total disability ended as of July 10, 1969, and that from that date until September 3, 1969 (he had worked a total of 91 hours at the rate of $2.37 an hour), he possessed 15% of his pre-accident work capacity. By agreement of counsel his average weekly wage at the time of his injury in October 1968, was $136.66. Therefore during the period of partial disability from July 20, 1969, to September 3, 1969, he would still be entitled to the maximum of $65.17 a week for partial disability.

'Now that Mr. Levesque has been actually earning $92.00 a week since September 3, 1969, he is of course, entitled to 2/3 of the difference between what he is now earning and what he was able to earn when injured. The difference is $44.66, and 2/3 thereof is $29.76. Accordingly, the employer is ordered to pay Mr. Levesque $29.76 a week for partial disability from September 3, 1969, until such time as this decree is changed.' (Emphasis supplied.)

The claimant's employment by the Province of Quebec in weighing sand trucks and helping in surveying in connection with road construction work ended on December 8, 1970 when, due to winter weather conditions, such road construction work ceased. While being paid compensation under the decree of October 28, 1969 and pursuant to 39 M.R.S.A. § 100, Mr. Levesque filed a petition for review of his incapacity due to his injury on the ground that such incapacity had increased since the date of the last hearing and decree. The Commissioner heard the parties on February 11, 1971 at which time Dr. John A. Woodcock testified for the employee. After stating the results of his examination of the claimant, Dr. Woodcock concluded and gave it as his opinion that Mr. Levesque was permanently limited as to the type of work he could do, testifying in part:

'I did not feel that he would get back to woods work. A light job such as he had surveying would be ideal, I would feel, I would relate his impairment as present in the entire body and it would seem to me there would be approximately 30% or perhaps a little bit more. I did not see the need for any orthopedic surgery.'

Mr. Levesque testified that, after the loss of his employment by the provincial government, he looked for work within his limited capacity but there was none available. He did say that light work as he had been doing would probably be available to him in the month of May when road construction would resume.

In this posture of the evidence by decree dated March 22, 1971, the Commissioner, after reciting Dr. Woodcock's medical conclusions, found-

'Mr. Levesque's incapacity for work is no greater than it was on October 29, 1969 when the last decree was issued.

'Mr. Levesque, however, has not worked since Dec. 8, 1970, when the job he had weighing sand trucks was ended because the construction season ended.

'He testified that he has sought other light work in the area where he lives and that he applied at the employment office but has not been able to find work within his capacity. He testified that he is still unable to work with a chain saw or to do other heavy woods work. The medical testimony confirms this.

'We find that due to his injury, Mr. Levesque cannot find work within his limited capacity and that he is entitled to compensation for total disability from December 8, 1970 to the present at the rate of $65.17 a week and until such time as this decree is modified.'

It is undisputed that Levesque's loss of available light work was not due to his own fault, to any subsequent illness or accident, nor to any general business depression. The appellants contend that, since the employee's physical condition was unchanged from the time of the decree of October 28, 1969 and his loss of employment was due to the cessation of road construction during the winter months, such decrease in availability of light work should not be considered as increasing his incapacity for work within the meaning of the Workmen's Compensation Act. In this, the appellants are mistaken.

Conceding the evidence supports the Commissioner in his findings of facts, they agree that the claimant is a man of very limited education with no vocational skills or training. Levesque had worked in the woods as a wood cutter and wood skidder from the age of seventeen to the time of his accident. Thereafter his capacity for work was limited to light work which he was performing when his employment ceased with the closing-out of road construction for the winter season. The appellants do not question his good faith in seeking light work within his limited capacity and the fact he was unable to find any.

The issue on appeal is whether the Commissioner erred as a matter of law in finding that claimant's incapacity had increased from partial to total while at the same time finding no change in claimant's physical disability which admittedly was not total.

We agree that the decree as worded is at least confusing. But it is obvious what the Commissioner intended to say. We interpret the decree to mean that the claimant's physical disability (he possessed 15% of his pre-accident work capacity) had not changed since the prior decree of partial incapacity, but, due to the lack of available employment within his limited capacity for work, claimant's partial incapacity for work as previously...