Pelchat v. Portland Box Co.

• Decision Date: 08 June 1959
• Parties: Wilfred PELCHAT v. PORTLAND BOX CO., Inc. and U. S. Fidelity & Guaranty Co.
• Court: Maine Supreme Court

Page 615

153 A.2d 615

155 Me. 226

Wilfred PELCHAT v. PORTLAND BOX CO., Inc. and U. S. Fidelity & Guaranty Co.

Supreme Judicial Court of Maine.

June 8, 1959.

Benjamin L. Berman, Lewiston, John J. Flaherty, Portland, for plaintiff.

Forrest E. Richardson, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN, DUBORD, and SIDDALL, JJ.

WEBBER, Justice.

The decree below confirming a decision of the Industrial Accident Commission has reduced the compensation of the appealing employee Pelchat. This action was taken on a petition for review filed by the employer and is based on a finding by the Commission that Pelchat's partial incapacity to work and earn wages has diminished to a present level of fifty per cent of his capacity prior to his accident. The issue is whether or not there was any evidence to support the finding.

The medical testimony supports a finding that the employee is sufficiently recovered from the injury to his foot so as to have at least fifty per cent of normal capacity and in particular to be able to perform 'light work'. It was strongly urged by medical witnesses that engaging in 'light work' would benefit the employee's physical condition and would have therapeutic value. The medical witnesses were of opinion that the injured employee entertained a genuine but mistaken fear of actively using his foot and for that reason preferred to remain for the most part immobile with the foot elevated.

As illustrative of what was meant by 'light work', the attending physician expressed the opinion that Mr. Pelchat could carry dry lumber weighing 15 to 20 pounds, but could not be expected to carry green lumber weighing about 85 pounds. The physician included as 'light work' physical labor which would involve more use of the foot, walking and standing, even though some discomfort might be entailed, in order to improve both motion and circulation. He recognized some limitation in climbing ladders or walking on rough ground but in general felt that Mr. Pelchat could perform any type of work requiring standing, walking or lifting. There was other medical testimony substantially to the same effect.

The petitioning employer offered no evidence of specific job opportunities or of the wages which might be earned from 'light work'. Following what has apparently become accepted practice, the Commission, having found a fifty per cent incapacity, applied this percentage to the original earning capacity in order to determine the rate of weekly compensation as fixed by statute. The employee, while conceding that there was medical evidence to support a finding of fifty per cent partial incapacity, contends that there was no evidence as to what work was available to him or what wages such work would produce. He therefore insists that the petitioner wholly failed to sustain its burden of proof.

A review of the cases suggests at once that any appearance of conflict is largely dissipated if we keep in mind the distinction between the burden of proof and the burden of going forward with evidence. We are satisfied that this was the distinction which our Court had in mind in Connelly's Case, 1923, 122 Me. 289, 119 A. 664, 665. The language of the opinion has such direct bearing on the problem before us that we quote from it at length. In this case the employee had been receiving compensation on the basis of total incapacity. A petition for review brought by the insurance carrier was denied by the Commission on the ground that the employee still could not perform the same work which he was doing at the time he was injured, or even work of the same nature. In reversing the decision of the Commission, the Court held that this was not the proper test and pointed out that the subsequent partial capacity to perform work and earn wages was not limited 'to the same kind of employment in which he was engaged at the time of the injury.' The Commission in its decree has pointed out that medical evidence had been submitted that the employee was sufficiently recovered to engage in some 'light work,' but had noted that no evidence had been furnished showing the particular nature of any 'light work' available to the employee, nor any evidence that the employer could or would furnish him with any such work. Quite significantly, we think, the state of the evidence as thus described closely and almost exactly parallels that before us in the instant case. After reiterating the rule which has always obtained in Maine that the burden of proof rests and remains upon the moving party to establish the grounds upon which his petition is based, Mr. Justice Wilson, speaking for an unanimous Court, went on to say at page 292, of 122 Me. at page 666, of 119 A.:

'When a petitioner for review has shown an ability to do such work as is ordinarily available in the community in which the injured employee resides, and the kind of work suggested by the physician testifying in this case was 'driving a team or working around a place,' he has sustained the burden upon him as the moving party in a petition of the kind now before us. It then, we think, becomes the burden of the employee to meet this by showing he has used reasonable efforts to obtain such work and failed by reason of his injury. * * *

'If he fails to use reasonable efforts to find work such as he could perform, or insists that he could not perform it, if available, no burden rests upon the petitioner to offer him work or to prove that some particular kind of work is available which he could perform.' (Emphasis supplied.)

It is obvious that the Court was here thinking of more than the petitioner's burden of proof. The opinion clearly indicates the nature of evidence which, when presented by the petitioner and accepted and believed by the factfinder, will cause the burden of going forward with contrary or offsetting evidence to shift to the adversary. If such contrary evidence is not forthcoming, both the petitioner's burden of proof and his initial burden of going forward with evidence...