Sutherland v. Pepsi-Cola Bottling Co.

• Decision Date: 30 May 1979
• Citation: 402 A.2d 50
• Parties: Scott A. SUTHERLAND v. PEPSI COLA BOTTLING COMPANY.
• Court: Maine Supreme Court

Page 50

402 A.2d 50

Scott A. SUTHERLAND v. PEPSI COLA BOTTLING COMPANY.

Supreme Judicial Court of Maine.

May 30, 1979.

Allan Woodcock, Jr. (orally), Bangor, for plaintiff.

Norman & Hanson by John M. Wallach (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, ARCHIBALD, DELAHANTY, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

Aggrieved by a decision of the Workers' Compensation Commission, the employer secured a pro forma decree from the Superior Court, Penobscot County, and now prosecutes this appeal. Since we agree with the employer's position that the record fails to demonstrate that the employee gave adequate notice of injury as required by 39 M.R.S.A. § 63, we sustain the appeal and remand the case for further proceedings.

FACTS

On January 26, 1977, the employee was working in the employer's bottling plant in Brewer, Maine, when he bent down to move a beer barrel with one hand and felt an immediate "twinge" in his back. Although he was able to continue working, chronic back pain persisted. On February 14, 1977, he consulted his personal physician, Dr. Edward Babcock. The doctor testified:

At that time he came in primarily for a fever and he had a flu like episode but at the same time he mentioned some soreness in the right buttock and upper posterior right thigh of several weeks duration. At the time it seemed like a minor complaint and I thought it was perhaps a muscle pull or perhaps even something related to his flu. And, I sent him home on a program consistent with treating the flu.

The record does not indicate whether the doctor informed the employee of his conjectures regarding the source of the back injury, ¹ nor does it clearly indicate whether the employee told the doctor about the January 26 incident.

When the pain in his back continued and began to grow more intense, the employee returned to Dr. Babcock for another examination on March 28, 1977, roughly two months after he had felt the first "twinge." The employee now dated the onset of his back pain to the beer barrel incident. Two days later, an examination by Dr. Philip Kimball, an orthopedic surgeon recommended by Dr. Babcock, revealed an extruded lumbosacral disc. Surgical removal of the disc was accomplished, and the employee returned to work in late June of 1977.

The record discloses that the employer first learned of the injury on March 31, 1977, when the employee filed a workers' compensation form at the employer's office. At the hearing, the employee's supervisor was called and testified that prior to that date the employee "hadn't said a word to (him) about it."

The Commissioner held that the employee had sustained a work-related injury and found him totally disabled from March 30 until June 2, 1977, fifty percent disabled from then until October 4, 1977, and partially disabled thereafter, and on a permanent basis. Although the employer in its answer had affirmatively raised the question of the sufficiency of notice, the Commissioner made no findings of fact directly bearing on the issue, nor did he disclose why he concluded that the notice was in compliance with Section 63.

DISCUSSION

We have consistently interpreted 39 M.R.S.A. § 99 as requiring the Commission to make known its findings of fact "in order to enable this court on appeal to determine whether competent evidence supports the commission's decision and whether its decree is based either upon a misapprehension of fact or a misapplication of law to the facts." Dufault v. Midland-Ross of Canada, Ltd., Me., 380 A.2d 200, 203 (1977). Effective July 6, 1978, the Legislature amended Section 99 to give the Commissioner the option to not make findings of fact in the first instance. The amendment also preserved the right of any party to seek specific findings from the Commissioner by filing a motion within ten days after notice of the decision. 1978 Me. Acts ch. 632. ²

Although the statute became effective at a time when the instant proceeding was pending (after hearings were completed but prior to the issuance of the Commission's decree), we hold that its provisions must govern. It has been held in Maine, Batchelder v. Tweedie, Me., 294 A.2d 443, 444 (1972); Central Maine Power Co. v. Public Utilities Commission, 150 Me. 257, 269, 109 A.2d 512, 518 (1954), as well as in other jurisdictions, E. g., Turner v. United States, 410 F.2d 837 (5th Cir. 1969); Darrah v. Foster, 355 S.W.2d 24 (Mo.1962), that "(p)rocedural statutes are . . . ordinarily applicable to pending actions." Batchelder v. Tweedie, supra 294 A.2d at 444. Cf. Diamond International Corp. v. Philip L. Gadbois & Sons, Inc., Me., 390 A.2d 1061 (1978). That the amendment in question effects merely a procedural change and not a substantive one is beyond question. The amendment neither enlarges nor constricts the substantive rights of either party; rather, its only purpose is to hasten the issuance of Commission decrees. ³ As such, it relates solely to the conduct of litigation and may therefore be safely classified as procedural.

Although the Legislature, by the 1978 amendment, clearly relieved the Commissioner of his duty to make findings of fact, it has given us little guidance in determining the standard of review in cases where the Commissioner has furnished us with neither his reasoning regarding a dispositive legal issue nor the findings of fact underlying that reasoning. It is significant, however, that the second paragraph of the amendment gives any party the right to move the Commissioner to make known his findings of fact and conclusions of law. Under this procedural structure, a party aggrieved by the Commissioner's failure to find facts has it within his power to correct the situation by demanding a reviewable decision for appellate consideration. Where, as here, the party neglects to make use of this procedure, leaving us with little or no clue as to the reasons and factual findings supporting the decision, we deem it proper to sustain the Commissioner unless, resolving all questions of fact in favor of the Commissioner's decision, the record nevertheless fails to disclose any reasonable basis for doing so.

On the rather scanty record developed below, we are unable to construct...