Lowe v. C. N. Brown Co. , 448 A.2d 1358 ( 1982 )


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  • VIOLETTE, Justice.

    The employee in this worker’s compensation case, Janice Lowe, appeals from a pro forma decree entered in Superior Court, Cumberland County, affirming an order of the Worker’s Compensation Commission (WCC) denying her Petition to Determine Extent of Permanent Incapacity and granting the employer’s Petition for Review of Incapacity. The commission found that the employee was no longer disabled and therefore not entitled to compensation benefits. The WCC also found that the employee has not sustained any permanent loss of the usefulness of the physical function of her shoulder. We affirm.

    I.

    On October 20, 1978, Janice Lowe, while working as a gas station attendant for C. N. Brown Company, fell and injured her shoulder. Osteopathic care and physical therapy proved ineffective in reducing the employee’s shoulder pain and swelling. On November 22, 1978, the employee and C. N. Brown Co. executed an agreement providing for payment of benefits for total incapacity resulting from her injuries on October 20. This agreement was properly approved by the WCC.

    In mid-December, 1978, Ms. Lowe consulted Dr. Margaret Millard, who became her regular physician and later testified at the hearing held in this case. At this hearing, Dr. Millard stated that she had diagnosed the employee’s condition as “tendonitis due to overstrain of the muscles during her fall . . .. ” She testified that she had advised Ms. Lowe to keep her arm in a sling and avoid using it altogether. Repeated electrostimulation treatments performed at Millard’s office relieved the employee’s pain completely. The doctor also testified that as of April, 1979, Ms. Lowe was symptom *1360free and displayed no objective signs of organic pathology. However, she stated that she had warned the employee that “she wouldn’t be able to use her arm, because it [the pain] would come back again if she did,” since tendonitis has a tendency to recur “when the extremity is used in a normal way.”

    On April 20, 1979, the employer filed a Petition for Review of Incapacity. On May 23, 1979, the employee filed a Petition to Determine Extent of Permanent Impairment. One hearing for both petitions was held on November 28, 1979.

    At the hearing, Dr. John Barrett, an orthopedic surgeon testified that he had examined Ms. Lowe on March 27,1979. In his opinion, she had suffered a strain of the right rotator cuff of the shoulder, but on the date of his examination he could find “no evidence of organic disease or pathology.” He stated that he did not believe Ms. Lowe was suffering from any permanent physical impairment and that he would not place any physical restrictions on her work activity.

    Dr. Millard had occasion to re-examine the employee in October 1979 when Ms. Lowe complained of renewed pain after she had helped a friend stack wood. Dr. Millard testified at the hearing that the pain was due exclusively to overuse of the arm. When asked about permanent impairment, the doctor testified that the employee had lost fifty percent of the usefulness of the physical function of her arm.

    The employee also testified at the hearing on the two petitions. She stated that her shoulder aches dully all the time, and that she takes aspirin every four hours for the pain. She testified that she cannot lift her arm much higher than ninety degrees.

    On January 30, 1980, the Commission issued a decree granting the employer’s petition, ordering termination of compensation as of January 30, 1980, and denying the employee’s petition. The employee seasonably moved for further findings of fact and conclusions of law. The Commissioner denied this motion, and the employee appealed the ensuing pro forma decree entered in Superior Court. This appeal was the subject of our decision in Lowe v. C. N. Brown Co., Me., 431 A.2d 1307 (1981), in which we found that the Commission had erroneously denied the employee’s motion, and so vacated the judgment and remanded the case to the Commission. The Commission issued on September 1, 1981, a four page opinion detailing the evidence and specifying its findings.

    In its findings, the Commission stated that it found that the employee was no longer disabled as a result of her October 20, 1978 injury, and that any injury she sustained because of stacking wood was not causally related to the original compensable injury. With respect to the employee’s petition, the Commission found that “the employee . . . failed in its burden of demonstrating any permanent loss of physical function to the employee’s upper extremity” and found “as a fact that there [had] been no such loss of function.”

    The employee has seasonably appealed the pro forma decree entered in Superior Court affirming the Commission’s decision.

    II

    The employee contends on appeal that there exists no competent evidence on the record to support the Commission’s decision that the employee was no longer incapacitated. The employer had the burden of proving that the employee’s incapacity for work had diminished. Proof of diminished incapacity is usually established by comparative medical evidence which is evidence comparing the medical condition of the employee at the time the compensation agreement was executed with her condition at the time of the petition for review. See Haney v. Lane Constr. Co., Me., 422 A.2d 1292 (1980); Hafford v. Kelly, Me., 421 A.2d 51 (1980).

    The employee argues that the only-comparative medical evidence presented be*1361low, Le. Dr. Millard’s testimony, indicated that the employee’s work capacity had not changed. However, this Court has recently held that where the employer seeks to meet its burden of proof with evidence showing that the worker no longer is disabled as a result of a work-related injury, comparative medical evidence of the employee’s condition need not be presented before a finding of full capacity may be upheld. Curtis v. Bridge Constr. Corp., Me., 428 A.2d 62 (1981). The employer in this case introduced the testimony of Dr. Barrett who stated essentially that he found no disability and would not restrict the employee’s work activities. Since this evidence was of the type contemplated by the Court in Curtis, the employer did not have to present comparative medical evidence in order to meet its burden of proof.

    We further find that Dr. Barrett’s testimony was competent evidence supporting the Commission’s finding of fact that the employee was no longer disabled. We therefore affirm the Commissioner’s decision that the employee was no longer entitled to payment of compensation.

    Ill

    The employee also contends on appeal that the Commission erred in denying her Petition to Determine Extent of Permanent Impairment. She argues first that the Commission applied an erroneous rule of law, and second that the Commission’s reliance on Dr. Barrett’s testimony was arbitrary and capricious.

    Under the Workers’ Compensation Act, an employee may petition for scheduled benefits for a particular injury which is a permanent impairment. Section 56 of Title 39 provides for a lump sum payment to an employee who sustains one or several of a number of injuries to a certain part of his body. Such injuries involve loss of a member of the body or loss of sight or hearing. However, since the year 1919 section 56 precursors have included the following “catch all” provision, which the employee claims applies to her injury:

    In all other cases of injury [i.e. not a case involving loss of member, sight or hearing] to the above-mentioned members, eyes or hearing where the usefulness of any physical function thereof is permanently impaired, the specific compensable periods for presumed total incapacity on account thereof shall bear such relation to the periods above specified as the percentage of permanent impairment due to the injury to such member, eyes or hearing shall bear to the total loss thereof. The commission upon petition therefor by either party shall determine such percentage. [emphasis added]

    39 M.R.S.A. § 56 (Supp. 1981-1982).

    The employee contends that the Commission’s written response to her motion for specific findings evidences a misapplication of the statutory standard for evaluating a claim of permanent impairment. In its September 1, 1981 opinion the Commission stated that the employee “failed in its burden of demonstrating any permanent loss of physical function.” (emphasis added). The employee perceives a distinction between this language and the statutory standard, permanent impairment of the “usefulness of any physical function.” (emphasis added). 39 M.R.S.A. § 56 (Supp. 1981-1982). We need not decide this question, since the record indicates that the Commission was familiar with and did follow the language of section 56. In the original decree issued on January 30, 1980, the Commission found as a fact and concluded as a matter of law that “the employee has failed in its burden of showing any permanent impairment to the usefulness of the physical function of the shoulder.” (emphasis added) Whether or not this finding is in fact supported by the evidence, it is clear in any event that the Commission applied the correct rule.

    We now turn to the second question raised by the employee with respect to *1362the denial of her petition. As with any other appeal from a decision of the Worker’s Compensation Commission, our scope of review of the Commission’s findings of fact is limited to deciding whether there is competent evidence on the record to support such findings. See Dunton v. Eastern Fine Paper Co., Me., 428 A.2d 512 (1980). We can reverse only if there is no competent evidence to support the Commission’s finding that the employee had not suffered a permanent impairment of the usefulness of the physical function of her shoulder.

    The Commission stated in its specific findings that it had relied on the testimony of Dr. Barrett in denying the employee’s petition. Dr. Barrett stated that at the time he examined Ms. Lowe she was not suffering from a permanent impairment. He also stated that she was not the victim of a chronic tension syndrome, displayed no objective physical signs of organic disease or pathology, and evidenced intact sensory, motor and strength components of her upper right extremity. He further testified that he would not place any physical restrictions on her work activity. Although the doctor was not specifically asked whether the employee had lost the usefulness of the physical function of her shoulder, the record as a whole supports the Commission’s conclusion that Dr. Barrett believed she had not sustained any lasting damage. It was reasonable for the Commission to infer, therefore, that Dr. Barrett believed the usefulness of the physical function of her shoulder had not been impaired. While we recognize that the record in this case unquestionably contains significant evidence contrary to the Commission’s finding that no permanent impairment exists, we are limited to determining whether there is competent evidence to support the Commission’s finding. Since Dr. Barrett’s testimony provides the requisite support, we cannot disturb the Commission’s decision denying the employee’s petition.

    The entry is:

    Judgment affirmed.

    McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS and WATHEN, JJ., concur.

Document Info

Citation Numbers: 448 A.2d 1358

Judges: Dufresne, Godfrey, McKusick, Nichols, Roberts, Violette, Wathen

Filed Date: 8/13/1982

Precedential Status: Precedential

Modified Date: 9/24/2021