Pelletier v. Pinette
| Citation | 259 A.2d 25 |
| Parties | Norbert PELLETIER (Employee) v. Patrick PINETTE and/or Hartford Accident and Indemnity Company. |
| Decision Date | 24 November 1969 |
| Court | Supreme Judicial Court of Maine (US) |
Norbert Pelletier, pro se.
Mitchell & Ballou, by John W. Ballou, Bangor, for defendants.
Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE, and POMEROY, JJ.
On July 24, 1968, Norbert Pelletier, a carpenter, of St. Francis, New Brunswick, Canada, received an injury in the course of his employment as an employee of Patrick Pinette and arising out of such employment. An approved agreement between Pelletier and his employer and the Hartford Accident and Indemnity Company, the employer's insurance carrier, was reached. By its terms, Mr. Pelletier is receiving compensation for his temporary total incapacity to work.
A Petition for Review of Incapacity, filed by the employer and the carrier, was, after hearing, decided in favor of Pelletier. A Pro Forma Decree sustaining the decision of the Industrial Accident Commission was entered by the Superior Court on May 6, 1969. This appeal is from such Pro Forma Decree.
The employer and the insurance carrier ask this Court to find the Decree of the Industrial Accident Commission erroneous and to reverse it. They say there was no evidence to support the Commission's finding.
The issue presented is: Was there competent evidence to support the Commission's finding of fact that Mr. Pelletier was at the time of the hearing, totally disabled due to his injury?
This Court in Starbird v. Livermore Shoe Co. et al., 239 A.2d 170 (Me.) (1968), repeated what it said in Albert v. Lockwood Co., 142 Me. 33, 45 A.2d 660 (1946).
(Emphasis supplied.)
At the hearing on the employer's Petition for Review of Incapacity, Dr. Woodcock of Bangor, was called as the only witness for the Petitioner. He was asked what conclusion he reached as a result of his most recent examination of Mr. Pelletier on January 14, 1969. He replied:
'I felt that he did have some work capability and suggested that he try to obtain some kind of work not physically as demanding as that of a carpenter.'
To this question put to him by the employer's attorney:
He answered:
At the point it became the responsibility of the employee to come forward with evidence, if any there was, that he had used reasonable efforts to obtain the kind of work for which the physician had found him capable, and that he had failed by reason of his injury or because there was no such work available in the area in which he lived. Pelchat v. Portland Box Co., Inc., 155 Me. 226, 153 A.2d 615.
Mr. Pelletier did not come forward with any such evidence. His testimony (through an interpreter), touching on his ability to work was as follows:
'Q. Have you done any work since December, 1968?
A. No, I haven't.
Q. Have you tried to do any work?
A. He tried to and he just can't do any work.
Q. What did he try to do-what did you try to do?
A. He tried to do a little bit of carpentry.'
The Commissioner found:
'Considering the nature of the injury and Pelletier's age and other circumstances including lack of opportunity to work, we believe, and it is our finding that Mr. Pelletier is at this time as a practical matter totally disabled due to his injury.'
There was no competent evidence on which to base...
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...of all available evidence which we discussed in White v. Monmouth Canning Co., Me., 228 A.2d 795 (1967) and in Pelletier v. Pinette, Me., 259 A.2d 25 (1969). Second, if the matter is appealed, it thrusts upon this Court the duty of finding facts from the printed record which a Commissioner ......
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