MacLeod v. Great Northern Paper Co.

• Decision Date: 03 August 1970
• Parties: Donald MacLEOD v. GREAT NORTHERN PAPER COMPANY et al.
• Court: Maine Supreme Court

Page 488

268 A.2d 488

Donald MacLEOD v. GREAT NORTHERN PAPER COMPANY et al.

Supreme Judicial Court of Maine.

Aug. 3, 1970.

Paine, Cohen & Lynch, by William S. Cohen and Allan Woodcock, Jr., Bangor, for plaintiff.

Mitchell & Ballou, by James E. Mitchell, John W. Ballou, Bangor, James R. Desmond, Portland, for defendants.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.

WILLIAMSON, Chief Justice.

The petitioner MacLeod appeals from a decision of the Industrial Accident Commission denying workmen's compensation from his employer, the respondent Great Northern Paper Company.

The appellant in his brief 'contends that the Commission erred in finding that no causal relationship existed between the accident on December 6, 1967 and his disability following a spinal fusion in April, 1968 for the following reasons: (a) The Commission disregarded evidence which had probative force in favor of Appellant; (b) The Commission relied upon hearsay evidence; (c) The Commission applied an erroneous test to determine causal relationship between an accident and resulting disability.'

The basic issue is whether the decree of the Commission is supported by some competent evidence. If so, the decree is final.

'(The Commissioner's) decision, in the absence of fraud, upon all questions of fact shall be final. * * *' 39 M.R.S.A. § 99.

'39 M.R.S.A. § 99 provides in part that a decision of the Commission 'in the absence of fraud, upon all questions of fact shall be final.' We look only to see if the decision rests on some legally competent and probative evidence and is not merely the result of speculation, conjecture or guesswork.' Bradbury v. General Foods Corporation, Me., 218 A.2d 673, 674; Goldthwaite v. Sheraton Restaurant et al., 154 Me. 214, 145 A.2d 362; Bernier v. Coca-Cola Bottling Plants, Inc., Me., 250 A.2d 820.

The claimant for workmen's compensation has the burden of proof on all essential elements. White v. Monmouth Canning Company, Me., 228 A.2d 795. He must establish a causal relation between the accident and the disability. Baker's Case, 143 Me. 103, 55 A.2d 780. He need not, however, prove that the accident was the sole proximate cause of the disability. It is sufficient if he proves that a pre-existing condition was accelerated or aggravated by a work connected accident. Patrick v. J. B. Ham Co., 119 Me. 510, 111 A. 912, 13 A.L.R. 427; Matriciano v. Profenno, 127 Me. 549, 143 A. 270. 'This is sometimes expressed by saying that the employer takes the employee as he finds him.' 1 Larson Workmen's Compensation § 12.20, p. 192.23. Causation is a fact to be found by the Commission. Houle v. Tondreau Bros. Co. and Aetna Casualty & Surety Co., 148 Me. 189, 91 A.2d 481. We summarize the evidence:

On December 6, 1967 while he was unloading his large tool box in the course of a company inspection of his tools, the appellant's back 'began to bother him,' and he felt 'a single twinge.' He was given a muscle relaxant pill at the first aid room. 'Probably an hour after I had that the pain was gone from my back so that I was able to continue normal operation.' He lost no time from work.

The appellant had had back trouble for ten years, said to have been caused by osteoarthritis preexisting the December 6, 1967 incident. Prior to that date there was a history of several incidents of back pain, described as 'episodes' or 'upsets.'

After consulting Dr. Hamlin, the mill doctor, the appellant consulted Dr. Leonard of Portland who recommended conservative treatment prescribing exercises to strengthen the back and suggested he wear a lumbosacral corset. He continued with his usual duties without loss of time until the operation in late April 1968.

Between his first visit to Dr. Leonard and late April 1968 he had another of 'those upsets,' in his words, or 'one episode of low back pain while wearing (the corset),' in the words of the doctor.

On his return to Dr. Leonard, it was decided that he should undergo surgery for a 'low back fusion' for 'more permanent control of his pain.' The operation was 'elective' on the part of the appellant in the sense that it was indicated as a proper treatment for relief, but was not required.

Dr. Leonard also testified:

'Q Within a degree of medical certainty do you believe that the stooping over and getting up as referred to as happening in December 1967 could have lighted up this man's preexisting condition of osteoarthritis?

'A Yes, I believe it could have and brought him to neurosurgical evaluation and my further evaluation.'

The Commission in its decree said, in part:

'The evidence leads us to the conclusion that the surgery performed by Dr. Leonard was for the purpose of relieving the painful symptoms, of osteoarthritis affecting Mr. MacLeod's spine. This osteoarthritis did not result from the incident on December 6, 1967, but was present for a long time before that date. Although the activity on December 6, 1967, may have aggravated the existing osteoarthritis and thereby produced increased pain, it soon subsided to the level that existed before December 6, 1967. According to Dr. Leonard's testimony, Mr. MacLeod had low back pain for ten years prior to the time he saw Dr. Leonard.

'We find that the back condition treated by Dr. Leonard was not the result of an accidental injury while at work on December 6, 1967 and we find that the surgery in April 1968, was not made necessary to any significant degree by the activity involved in emptying and reloading the tool box on December 6, 1967. The Petition for Award is, for that reason hereby dismissed.'

First: We are fully satisfied that the Commission did not disregard evidence of probative force in favor of the appellant. It would serve no useful purpose to rehearse in detail the history of the appellant's arthritic condition over a period of several years. There was competent evidence from which the Commission could find, as it did find, that the appellant's pain soon subsided to the level that existed before December 6, 1967.

Second: Dr. Hamlin, called by the respondent, saw the appellant following the December 6 incident. He also testified of the history of the back condition of the appellant from 1957 to date largely from medical records, not based on the doctor's examination of the appellant. ...