Towle v. Department of Transp., State Highway

• Decision Date: 08 April 1974
• Citation: 318 A.2d 71
• Parties: Clarence F. TOWLE v. DEPARTMENT OF TRANSPORTATION, STATE HIGHWAY.
• Court: Maine Supreme Court

Page 71

318 A.2d 71

Clarence F. TOWLE v. DEPARTMENT OF TRANSPORTATION, STATE HIGHWAY.

Supreme Judicial Court of Maine.

April 8, 1974.

Calkins, Wuesthoff & Sunenblick by Stephen P. Suneblick, Portland, for plaintiff.

Donald L. Beckwith, Dept. of Transp., Augusta, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD, and DELAHANTY, JJ.

POMEROY, Justice.

Every word of the phrase 'by accident arising out of and in the course of his employment,' ¹ standing alone has a clear meaning. ²

Put the words together and one produces the occasion for nearly as much litigation as was produced by the words 'Congress shall make no law respecting an establishment of religion.'! Constitution of the United States, Amendment I.

The words first appeared together in a Maine statute in 1915. P.L.1915, c. 295.

In the ensuing years to this date this Court has had occasion to interpret the phrase in Patrick v. J. B. Ham Co., 119 Me. 510, 111 A. 912 (1921); Brown's Case, 123 Me. 424, 123 A. 421 (1924); Bernier v. Coca-Cola Bottling Plants, Inc., Me., 250 A.2d 820 (1969); Taylor's Case, 127 Me. 207, 142 A. 730 (1928); Hull's Case, 125 Me. 135, 131 A. 391 (1925); McDougal's Case, 127 Me. 491, 144 A. 446 (1929); Crowley's Case, 130 Me. 1, 153 A. 184 (1931); Swett's Case, 125 Me. 389, 134 A. 200 (1926); McNiff v. Town of Old Orchard Beach, 138 Me. 335, 25 A.2d 493 (1942); Matthews v. R. T. Allen & Sons, Inc., Me., 266 A.2d 240 (1970), to name a few.

And these cases relate only to an interpretation of the word 'accident'!

A list of cases relating to the interpretation of the words 'arising out of and in the course of his employment' would be much longer than that above.

A reading of the cases decided since 1915 leads us to conclude that the law of Maine now is that,

(a) there is an accidental injury where an external force is applied to an external portion of the body, Taylor's Case, supra;

(b) the term injury by accident includes the situation where internal parts of the physical structure break down under external force including the stress of labor, Id.; Matthews v. R. T. Allen & Sons, Inc., supra, 266 A.2d at 245-246;

(c) the internal incident need not have demonstrated itself by a dramatic, instantaneous effect upon the victim, McDougal's Case, supra, 127 Me. at 492;

(d) while the concept of accident is ordinarily understood as embodying a certain degree or element of suddenness in the occurrence and is frequently so defined, it is not always required that the occurrence be instantaneous, Brown's Case, supra;

(e) a petitioner is not required to demonstrate the injury was suffered at a particular moment while doing a particular act, Hull's Case, supra;

(f) a weakness in the bodily structure which is gradually worsened and breaks down finally in the stress of usual work may sometimes be an injury by accident, Bernier v. Coca-Cola Bottling Plants, Inc., supra;

(g) If the stress of labor aggravates or accelerates the development of a preexisting infirmity causing an internal breakdown of that part of the structure, a personal injury by accident occurs. Patrick v. Ham, supra, 119 Me. at 519, 111 A. 912.

This appeal from a pro forma decree affirming an Industrial Accident Commission holding that

'In the instant case, the condition probably arose out of and in the course of Mr Towle's employment as a sweeper operator. However, we are unable to find that the condition resulted from accidental injury, and we must, therefore, dismiss this petition,'

causes us to add this one more case to the already long list on the subject.

We deny the appeal.

Petitioner Towle was employed by the Department of Transportation, State Highway Commission, as the operator of a power broom or street sweeper.

He had been so employed for three summers.

To perform his work he was required to lean out the door of the sweeper to insure proceeding in a straight line. The machine was equipped with an overhead blower which caused cool air to strike his shoulder while he was operating the machine. The seat on which he sat was of hard rubber composition and was not equipped with springs.

In April, 1972, the petitioner became aware of an ache in his back, which he described as 'as if you had a cold in your muscle,' which increased in intensity to such an extent that on April 15 he sought medical advice for his ailment. In giving the history of his ailment to the physician whom he consulted, he did not describe any particular incident which had given rise to the back pain.

Upon examination the physician found a strain which he described as 'the same type of muscle strain in his mid-back that you would find in a charley horse type thing at that time. Similar to what you find in a kid that had been maybe at a basketball game or football game.'

In the opinion of that physician the muscle strain was the result of driving the sweeper.

Later the petitioner was examined by a physician specializing in orthopedic medicine. This physician received a history that as early as September of 1971, petitioner had complained of a dull ache between the shoulder blades each day at the end of his working day. When the work was discontinued in the late fall of that year he no longer continued to experience pain. However, when he returned to work on the sweeper in late March of 1972 he began having the same symptoms as previously known, i. e., pain between the shoulder blades and mid dorsal region which became progressively worse so that in mid-April he was caused to stop working.

An examination by this physician revealed minimal tendereness in the insertion of the rhomboid muscles to his scapula.

The diagnosis then reached by this physician was 'chronic postural strain secondary to his position he assumed as the operator of the street sweeper.'

The facts are not in dispute.

The issue clearly becomes, is one who suffers a postural strain over a period of time as a result of the attitude he is required to assume in carrying out his employment, the victim of a 'personal injury by accident arising out of and in the course of his employment?'

In the instant case it is clear the postural strain was not traceable to any specific episode. Rather it gradually developed over a substantial period of time.

The back strain was clearly not the result of an accident in the sense of

'1. In general, anything that happens or begins to be without design, or as an unforeseen effect; that which falls out by chance; a fortuitous event or circumstance.

'2. Specifically, an undesirable or unfortunate happening; an undesigned harm or injury; a casualty or mishap.

'3. The operation of chance; an undesigned contingency; a happening without intentional causation; chance; fortune.

Century Dictionary.' Patrick v. Ham, 119 Me. 511, 518, 111 A. 912, 915 (1921) ³

That it did not demonstrate itself by a sudden dramatic effect upon the victim is not controlling. Matthews v. R. T. Allen & Sons, Inc., supra, 266 A.2d at 246.

We have always taken the position that

'. . . disability caused by personal injury by accident arising out of and in the course of his employment, is a statutory prerequisite for the payment of compensation to an injured employee, this claimant's injury, from what in a like situation some judge phrased the insensible progress of occupational disease, was not as matter of law received by accident.' Dillingham's Case, 127 Me. 245, 248, 142 A. 865, 866.

For an excellent example of a situation in which a pre-existing physical weakness, i. e., arteriosclerosis, when acted upon by a strain produces an unexpected or sudden occurrence such as a heart attack or a cerebral hemorrhage and is considered to be disability resulting from an accident, see Taylor's Case, supra.

In the instant case there was an insensible progress of an occupational disease, i. e., postural strain not manifested by a sudden or untoward event. The disease or physical condition was not one covered by 39 M.R.S.A. § 181 et seq., the occupational disease law. See 39 M.R.S.A. § 193.

There was, therefore, no compensable injury and the Industrial Accident Commissioner was correct in his conclusion.

We are aware that effective October 3, 1973, by the provisions of Chap. 389, Laws of Maine, 1973, the words 'by accident' were stricken from the statute.

We need not concern ourselves with the effect of this amendment to the statute since the events with which we are here concerned occurred long prior thereto.

'A statute shall not have retrospective operation unless its terms are so strong, clear, and imperative, that no other meaning can be annexed to them, or unless the intention of the Legislature cannot be otherwise satisfied . . ..' Langley v. Home Indemnity Company, Me., 272 A.2d 740, 746-747 (1971).

See also State Compensation Insurance Fund v. Workmen's Compensation Appeals Board, 1 Cal.App.3d 812, 82 Cal.Rptr. 102 (1969).

The entry must be,

Appeal denied.

Ordered that an allowance of $350.00 to cover fees and expenses of counsel, plus cost of record, be paid by appellee to the appellant.

Five Justices concurring.

DUFRESNE, Chief Justice (dissenting).

Petitioner Towle, for two previous years during the period from April to October, had operated a power broom or street sweeper, without suffering any incapacitating accident. True, when interviewed by Dr. Thomas Martin, Jr. in connection with his physical disablement of April 13, 1972, Towle related that he had experienced shoulder and back pains during the last month (September) of the 1971 seasonal operation of the sweeper, but daily massages has kept the pain under control and, following his shift to his winter duties, the malaise had disappeared. When he resumed work on the sweeper in late March of 1972, however, he began having similar symptoms of pain between his shoulder blades and mid dorsal region, which progressed to an acute stage on April 13, 1972, the pain being so severe that he had to discontinue his work.

The...