McKague v. John Jameson Tree Service

• Decision Date: 18 February 1969
• Citation: 250 A.2d 198
• Court: Maine Supreme Court
• Parties: Ernest McKAGUE (Employee) v. JOHN JAMESON TREE SERVICE and Zurich insurance Co.

Page 198

250 A.2d 198

Ernest McKAGUE (Employee) v. JOHN JAMESON TREE SERVICE and Zurich insurance Co.

Supreme Judicial Court of Maine.

Feb. 18, 1969.

Oscar Walker, Bangor, for plaintiff.

Julian G. Hubbard, Portland, for defendants.

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

TAPLEY, Justice.

On appeal. This is an appeal from the pro forma ruling of a Justice of the superior Court wherein he upheld the decision of the Industrial Accident Commission. The pro forma decree should be an adopted form of the Commissioner's decree. The pro forma decree in the instant case contains material not found in the original decree or the record.

The Commissioner decreed that the petitioner, Ernest L. McKague, was entitled to receive the sum of $1319.85 for permanent impairment. The appellants, John Jameson Tree Service and Zurich Insurance Co., complain in their points of appeal that they were deprived of their legal rights to be represented by their counsel at the hearing, which constituted a violation of due process of law. The record establishes these facts. The employee, Mr. McKague, on September 15, 1967, filed a petition for a lump sum settlement in the sum of $400. A hearing was had on this petition on November 7, 1967 and by decree dated November 21, 1967 the petition was dismissed. On November 17, 1967 the petitioner filed a petition for the determination of the extent of permanent impairment. The petition was assigned for hearing by the Commission on January 5, 1968. Counsel for the employer wrote to the Clerk of the Industrial Accident Commission on December 27, 1967 saying that he would not be present at the hearing on January 5, 1968 due to a delay in the mail of a medical report sent to Dr. Woodcock, employer's physician, who required the report to assist him in the examination of the employee. Counsel asked for a postponement of the hearing.

On January 5, 1968 the employee, his attorney and Dr. John McGinn who was to testify for the employee, were present but counsel for the employer was not. The Commissioner continued the hearing to February 6, 1968. In reference to the nonappearance of counsel for the employer at the February 6, 1968 hearing a portion of the Commissioner's decree contains a recital of what happened as to the nonappearance of counsel for the employer on January 5, 1968 and again on February 6, 1968.

'The Petition for Permanent Impairment was first assigned for hearing by the Commission on January 5, 1968, at Bangor, Maine. The employee and his attorney were present at said hearing as was Dr. John McGinn, an orthopedic surgeon of Bangor, Maine, who was present at the request of the employee to testify on his behalf. The attorney for the employer, Julian Hubbard, was not present although no continuance had been granted by the Commission. The commission, on its own motion, continued the case, and assigned the same for a hearing at 9:15 A.M. on February 6, 1968 at Bangor, Maine. The employee, his attorney, and Dr. John McGinn were all present. The attorney for the employer again failed to appear.'

Counsel for employer argues that his secretary notified the Commission by telephone that he would not be able to attend the hearing on February 6, 1968 as he was confined to his home by reason of illness.

Bearing upon this question of notification by counsel of his inability to appear at the February 6, 1968 hearing, the record discloses the...