Smith v. Young Women's Christian Ass'n

• Decision Date: 05 January 1982
• Citation: 438 A.2d 1276
• Parties: Evelyn SMITH v. YOUNG WOMEN'S CHRISTIAN ASSOCIATION and New Hampshire Insurance Company. Evelyn SMITH v. NACHI BEARING COMPANY and Employers Mutual Liability Company.
• Court: Maine Supreme Court

Page 1276

438 A.2d 1276

Evelyn SMITH v.YOUNG WOMEN'S CHRISTIAN ASSOCIATION andNew Hampshire Insurance Company.

Evelyn SMITH v.NACHI BEARING COMPANY andEmployers Mutual Liability Company.

Supreme Judicial Court of Maine.

Argued Nov. 5, 1981.

Decided Jan. 5, 1982.

Joseph L. Bornstein(orally), Portland, for plaintiff.

Preti, Flaherty & Beliveau, Keith A. Powers(orally), Portland, for YWCA and N. H. Ins. Co.

Norman & Hanson, Stephen W. Moriarty(orally) and Robert F. Hanson, Portland, for Nachi Bearing Co. and Employers Mut. Liability Co.

Before McKUSICK, C. J., and GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ.

CARTER, Judge.

The employee, Evelyn Smith, filed with the Workers' Compensation Commission four Petitions for Award of Compensation, two against Nachi Bearing Co.(Nachi), and two against the Young Women's Christian Association(YWCA).By agreement of the parties, these petitions were consolidated for hearing before the Commissioner.The Commissioner denied both petitions against Nachi, but granted the petitions against YWCA, finding total disability from September 28, 1978 until June 30, 1980, and 50% partial disability thereafter.The YWCA and Smith each requested further findings of fact and conclusions of law pursuant to 39 M.R.S.A. § 99, and each submitted proposed findings.The Commissioner denied both requests, stating that his original decree was adequate.After obtaining a pro forma decree from the Superior Court, the YWCA appealed, and Smith cross-appealed.We vacate the judgment and remand to the Commission for further findings of fact and conclusions of law.

Smith testified that she first injured her back while working for Nachi.She began working there in August 1977, and her duties included lifting bins of ball-bearings that weighed up to 50 lbs.After three weeks on the job, Smith experienced back pain spreading down her legs upon lifting.Smith claimed to have reported this condition to several people at Nachi, including her supervisor and a fellow employee who dispensed aspirin.On October 28, 1977, Smith was laid off from work.Smith saw Dr. Bonjour on November 1, and entered the hospital for back surgery two days later.Dr. Brinkman removed a large extruded disc fragment at level L5-S1.In January 1978 Smith resumed work at Nachi, but left after two days because of renewed pain.In September 1978, Smith began working as an after-school aide at the YWCA.Smith testified that on September 28, while supervising children, she slipped and half fell in the shower.Later that week a child grabbed Smith's neck from behind and pulled her backwards, causing pain in her back and legs.Smith left work, saw Dr. Bonjour on October 5, and underwent surgery on October 18, 1978.A recurrent disc fragment was removed from the same location in Smith's back as in the first surgery.

Smith testified that after surgery she suffered continued pain, could not bend, and could not stand or sit for long periods.She attempted to work in July 1980 boning chicken, but quit after two days because the necessary periods of standing were too painful.

Testimony of several doctors was admitted.Dr. Bonjour's notes indicate that Smith did not attribute any of her injuries to her work until the spring of 1978, when she asked Bonjour to alter his notes to reflect that her 1977 injury was work-related.(Smith denied that she made such a request.)Dr. Brinkman's testimony was that in November 1977 Smith reported intermittent back pain of ten years duration, increasing in severity the prior two to three months, corresponding with Smith's job (which Dr. Brinkman believed was working for an optical company).On August 8, 1979, Smith first informed Dr. Brinkman that both her disc injuries were work-related.Both doctors believed Smith had a gradual degenerative disc-disease.Dr. Brinkman, though considering Smith to be a "poor historian," stated that the YWCA incident in which a child grabbed Smith, assuming it happened, was to a reasonable medical certainty related to her second extruded disc fragment.Dr. Parisien, based upon Smith's history as told to him on May 17, 1979, and on medical records of Drs. Brinkman and Bonjour from November 1977, testified that Smith's work at Nachi caused her first extruded disc fragment, and the child-grabbing incident at the YWCA caused the second extruded fragment.

In his original decree, the Commissioner made the following findings and conclusions:

-Smith underwent disc surgery on November 8, 1977.

-Smith was totally disabled from November 8, 1977 to January 1, 1978.

-Smith was 50% disabled from January 4, 1978 to June 30, 1978.

-Smith underwent lumbar surgery on October 18, 1978.

-Smith was totally disabled from October 18, 1978 to June 30, 1980, and 50% disabled thereafter.

-Smith did not give Drs. Bonjour or Brinkman any history of work activity precipitating her back or leg discomfort in November 1977.The only histories which allege a work activity precipitating low back and leg pain are in the histories of two other doctors (who did not see Smith before December 1978).

-Smith failed to prove any work activity on or before January 24, 1978 that in any way precipitated, aggravated or accelerated the onset of low back and leg pain.

-Smith failed to prove that any work at Nachi changed the underlying pathology of Smith's back; thus Smith suffered no "injury" as a matter of law.

-Smith failed to prove compliance with 39 M.R.S.A. § 63(notice) with regard to Nachi.

-Smith sustained both alleged incidents at the YWCA.

-The YWCA received timely notice of both incidents.

-The two incidents aggravated Smith's underlying back condition, and resulted in a change in the underlying pathology of her back.

The Commissioner stated that Smith's credibility was the...