Wilkins v. Blanchard-mcdonald Lumber Co.

• Decision Date: 06 May 1947
• Docket Number: No. 1212.,1212.
• Parties: WILKINS v. BLANCHARD-McDONALD LUMBER CO. et al.
• Court: Vermont Supreme Court

52 A.2d 781

WILKINS

v.BLANCHARD-McDONALD LUMBER CO. et al.

No. 1212.

Supreme Court of Vermont.

May 6, 1947.

Exceptions from Commissioner of Industrial Relations; Howard E. Armstrong, Commissioner.

Proceeding under the Workmen's Compensation Act by Raymond J. Wilkins, claimant, against Blanchard-McDonald Lumber Company, employer, and American Fidelity Company, insurance carrier. To review an award by the Commissioner of Industrial Relations in favor of claimant, the employer and insurance carrier bring exceptions.

Award affirmed and cause remanded to Commissioner of Industrial Relations with direction.

Lawrence and O'Brien, of Rutland, for plaintiff.

Christopher A. Webber, of Rutland, for defendants.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

MOULTON, Chief Justice.

This cause comes before us on exceptions taken on behalf of the employer and the insurance carrier to an award of compensation made by the Commissioner of Industrial Relations to the claimant and to the findings of fact upon which the award is based. The findings state that the claimant sustained a personal injury by accident arising out of and in the course of his employment; that he was thereby temporarily totally disabled for work for a period of fifty-three weeks, and that he has, as a result of his injury, a fifty per cent permanent impairment of the physical function of his back. The Commissioner has awarded compensation at the rate of $15 a week for temporary total disability for a period of fifty-two weeks, commencing on the eighth day of such disability, and compensation at the same rate for permanent partial disability for a period of one hundred and thirty weeks as authorized by P.L. 6527, subdivision XX.

The first exception challenges the finding that the claimant had been totally disabled for work for a period of fifty-three weeks. The grounds for this exception are that the finding is without support by the evidence, or by the other findings, and that it is erroneous as a matter of law.

The findings of the Commissioner of Industrial Relations in cases within his jurisdiction stand like those of a referee or master, in that if they are fairly and reasonably warranted by the evidence they are conclusive and binding in this court. Kelley's Dependents v. Hoosac Lumber Co., 95 Vt. 50, 55, 113 A. 818; Chamberlain v. Central Vermont R. Co., 100 Vt. 284, 287, 137 A. 326; Hall v. Crystal Lake Ice Co., 109 Vt. 416, 420, 199 A. 252. In this respect they have the same force as a special verdict of a jury. Town of Grand Isle v. Kinney, 70 Vt. 381, 389, 41 A. 130; Harris v. Howard, 56 Vt. 695, 697. The evidence must be taken in the most favorable light for their support, all uncertainty as to its weight being resolved against the excepting party. Eastman v. Jacobs, 104 Vt. 536, 537, 162 A. 382; Reed v. Hendee, 100 Vt. 351, 355, 137 A. 329. Since the award of the Commissioner is the equivalent of a judgment of a trial court we must construe doubtful findings so as to support it, if this may reasonably be done. City of Montpelier v. Town of Calais, 114 Vt. 5, 8, 39 A. 2d 350; Campbell v. Ryan, 112 Vt. 238, 240, 22 A. 2d 502; Town of Manchester v. Town of Townshend, 110 Vt. 136, 144, 2 A. 2d 207; Reed v. Vermont Accident Ins. Co., 110 Vt. 501, 504, 9 A. 2d 111; Reed v. Hendee, supra, 100 Vt. at page 354, 137 A. 329.

According to the findings of fact, the claimant was unable to work from the day of the accident, November 20, 1941, until December 27 following, and then entered the employment of the Fellows Gear Shaper Company of Springfield, Vermont. He suffered pain in his back, had to have assistance in lifting objects and was compelled frequently to sit down and rest. After about six months the pain became so severe that he consulted and received treatment from three different physicians, but without relief, his condition becoming worse. A fourth physician fitted him with a sacroiliac brace in September, 1943, and after this he went back to work for the Fellows Gear Shaper Company and remained with that concern until September 17, 1945, when he became employed by the Mack Moulding Company, of Arlington, Vermont, where he was working at the time of the hearing before the Commissioner, in October, 1946. During the period of his severe pain and treatment he was totally incapacitated for an aggregate of nine weeks, and lost about twenty days, because of his injury, while with the Mack Moulding Company. He testified that, while working for the Fellows Gear Shaper Company, he thought he lost an average of five days a month from inability to perform his duties.

It is contended that the foregoing facts and testimony do not sustain the ultimate finding of fifty three weeks total disability. The argument is that the respective periods of inability to work between November 20 and December 27, 1941, the nine weeks lost during the claimant's subsequent treatment, and the twenty days lost at the Mack Moulding Company amount, in all, to seventeen weeks; and that the loss of five days a month at the Fellows Gear Shaper Company amounts to a total loss of two hundred and twenty-five days for the time in which the claimant was there employed and this would be thirty-two and one-seventh weeks, which, added to the seventeen weeks previously mentioned, shows only a total of forty-nine and one-seventh weeks. But there was evidence that the work week at the Fellows Gear Shaper Company consisted of five days, and not seven as the exceptors seem to have computed it, so that on this basis the time lost was forty-five weeks, which...