Norman v. American Woolen Co.

• Decision Date: 02 October 1951
• Docket Number: No. 369,369
• Citation: 117 Vt. 28,84 A.2d 125
• Court: Vermont Supreme Court
• Parties: NORMAN v. AMERICAN WOOLEN CO. et al.

Page 125

84 A.2d 125

117 Vt. 28

NORMAN v. AMERICAN WOOLEN CO. et al.

No. 369.

Supreme Court of Vermont.

Oct. 2, 1951.

Rehearing Denied Nov. 14, 1951.

Louis Lisman, Burlington, for plaintiff.

McNamara § Larrow, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

ADAMS, Justice.

The Commissioner of Industrial Relations in the original proceedings in this cause denied compensation. An appeal was had to the Chittenden County Court where a jury found that the claimant received an injury arising out of and in the course of his employment by the American Woolen Co. on or about February 14, 1949. Judgment was entered on this verdict and the case certified back to the Commissioner. A new notice and application for hearing was then filed by the claimant. This stated that the accident resulted in;--'Injury to the eye.' and that the questions at issue were;--'1, Amount of compensation to be paid for temporary total disability. 2, Amount of compensation to be paid for permanent disability to the eye. 3, Other payments to be made under the Workmen's Compensation Act.' A hearing was had before the Commissioner. Findings of fact and an order and award were made which so far as material here provided for compensation for permanent total disability commencing on February 24, 1949, and that 'compensation already accrued and unpaid shall be paid immediately with interest.' The case comes here on exceptions of the employer and insurance carrier to the award and order and to the findings of fact upon which it is based.

The findings of the Commissioner of Industrial Relations in cases within his jurisdiction stand like those of a referee or master in that if they are fairly and reasonably warranted by the evidence they are conclusive and binding on this court. The evidence must be taken in the light most favorable for their support, all uncertainty as to its weight being resolved against the excepting party. The award of the Commissioner is equivalent to the judgment of a trial court and doubtful findings must be construed to support it if this may reasonably be done. Wilkins v. Blanchard-McDonald Lumber Co., 115 Vt. 89, 90, 52 A.2d 781, and cases cited. We have repeatedly held that an exception to a judgment raises the question whether it is supported by the findings of fact. Colby's Executor v. Poor, 115 Vt. 147, 154, 55 A.2d 605, and cases cited; Davis v. Chittenden County Trust Co., 115 Vt. 349, 352, 61 A.2d 553, and cases cited; Caledonia National Bank v. McPherson, 116 Vt. 328, 329, 75 A.2d 685. Hence, as the award of the Commissioner is equivalent to the judgment of a trial court, the exception thereto only raises the question whether the findings of fact are sufficient to support it. Rothfarb v. Camp Awanee, Inc., 116 Vt. 172, 175, 71 A.2d 569.

Finding number 1 is that the claimant received an injury to his left eye on February 14, 1949; number 5 is that the claimant has a 20% loss of vision in his eyes, but since February 24, 1949, has been and is totally disabled to perform his work as a chain builder; number 7 is that he has been and is permanently and totally disabled from performing or securing work of the general character that he was performing when injured.

The first exception of the defendants is that 'a finding of loss of vision in both eyes taken collectively is not warranted by the evidence or by the provisions of the Workmen's Compensation Act.' The evidence was that the claimant had a 53% loss of vision in his left eye, 8% loss of vision in his right eye and 18 to 20% loss of vision in both eyes taken collectively. There was evidence to sustain a finding of loss of vision in both eyes taken collectively. It does not follow, however, that the finding can be sustained as against the exception that it is not warranted by the Workmen's Compensation Act. V.S.1947, § 8048 et seq.

It is essential under the Act that a workman receive a personal injury by accident arising out of and in the course of his employment. V.S.1947, § 8072. Here, as we have seen, there is the record of a jury verdict that the claimant received such an injury. It did not specify to what part of his body he received the injury. After that we have a new notice and application by the claimant stating that the accident resulted in 'injury to the eye' and that one of the questions at issue was 'compensation to be paid for permanent disability to the eye.' Moreover, finding number 1 is that an injury was received to the left eye. There is nothing in the findings showing that an injury was received to the right eye or that any loss of vision in that eye was the result of the injury to the left eye. This was essential in order to support a finding of a loss of vision in both eyes taken collectively under the Act. We cannot supply the omission of an essential fact that is not fairly and reasonably inferable from the facts found. Petition of New England Tel. & Tel. Co., 115 Vt. 494, 500-501, 66 A.2d 135, and cases cited; Johnson v. Estate of Samson, 113 Vt. 38, 42, 29 A.2d 919, 144 A.L.R. 1106.

Confronted with this record made by the claimant himself of an injury to the eye, a question at issue being compensation to be paid for permanent disability to the eye and then the finding of an injury to the left eye only, we cannot presume in support of the finding of a loss of vision in both eyes taken collectively that there was also an injury to the right eye or that the loss of vision in it was the result of the injury to the left eye.

The claimant says if there was error here it was harmless and that the finding was not necessary as all that was involved was a determination of compensation for total temporary disability and that a finding of specific disability is not necessary in a matter of total temporary disability. He asks that we, therefore, disregard the finding of 20% specific disability as surplusage. Assuming that his theory as to the non-necessity of a specific disability finding in a matter of total temporary disability is correct, which we do not in any way decide, his position is not tenable here. The transcript which is controlling shows that during the hearing, after it had proceeded at first on the question of total temporary disability, the attorney for the claimant then said he would like to inquire into the matter of permanent disability and then the hearing proceeded along that line. As we have seen permanent disability was an issue in the case, having been so stated in the claimant's application for the hearing. There is the finding that the claimant has been and is totally and permanently disabled since February 24, 1949, and the order and award is for permanent total disability. What we are asked to do is to strike out or disregard permanently and substitute therefor temporarily. This we cannot do. We are bound by the record. Legier v. Deveneau, 98 Vt. 188, 192, 126 A. 392. The error was harmful. The effect of an award for total permanent disability is entirely different than one for total temporary disability. The former continues during the full statutory period while with the latter the matter is open for a later showing that the total temporary disability has ended. This exception is sustained.

The second exception is that an award for total and permanent disability is not supported by a finding of 20% loss of vision in both eyes causing disability from performing or securing work of the general character being performed by the claimant when injured. This raises the question whether the finding is sufficient to support the award. Rothfarb v. Camp Awanee, Inc., supra, 116 Vt. at page 175, 71 A.2d 569. As there was error in the findings upon which the award is based and the order and award must be reversed upon that ground, we give this exception no further consideration. It probably will not occur in the same form again.

The third exception is to the jurisdiction of the Commissioner of Industrial Relations to order the payment of interest upon compensation already accrued and unpaid. This question will, without doubt, occur again in this case in further proceedings before the Commissioner and may occur in other cases so we give it consideration.

V.S.1947, § 8067, a part of the Workmen's Compensation Act, provides in effect that every contract of hiring, with certain exceptions, not material here, shall be presumed to have been made subject to the provisions of the compensation laws unless the parties or one of them otherwise indicate as provided by the law. All liability under the Act is based upon this contractual relation. There is no liability ex delicto. The proceeding for compensation is an action of contract within the meaning of the statute of limitations, V.S.1947, § 1689, Fitch v. Parks & Woolson Machine Co., 109 Vt. 92, 97-98, 191 A. 920.

Some states allow interest on an award and reach the result by applying the general interest statutes to include compensation cases and others reach the same result by requiring a special statute applicable to compensation cases. The main difficulty lies in the construction of these statutes. In states that allow interest there is a wide divergence of opinion as to when interest begins to run and there is also a wide divergence of opinion as to whether interest is recoverable. However, if there is a statute it must be followed. Horovitz, Workmen's Compensation Laws, Interest, Pages 353-360.

Our Workmen's Compensation Act is silent as to interest. Our general interest statute, V.S.1947, § 5438, fixing the rate of interest does not declare in what cases it shall be taken or that it shall be paid in any case. Its effect is to prohibit it from being taken above a given rate. Since, then, no one is required by either the common or statute law to pay interest, it follows that the allowance of interest by the court, as incident to the debt, must be founded upon the agreement of the parties, either express or implied....