Ibbitson v. Sheridan Corp.

463 A.2d 735, 1983 Me. LEXIS 765
CourtSupreme Judicial Court of Maine
DecidedAugust 2, 1983
StatusPublished

This text of 463 A.2d 735 (Ibbitson v. Sheridan Corp.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ibbitson v. Sheridan Corp., 463 A.2d 735, 1983 Me. LEXIS 765 (Me. 1983).

Opinion

GODFREY, Justice.

Employee Howard Ibbitson appeals from a judgment of the Appellate Division of the Workers’ Compensation Commission (Appellate Division) affirming a single Commissioner’s decision which terminated the payment of compensation benefits to Ibbitson on the ground that “the incapacity for which [he] is being compensated has ended.” On appeal, Ibbitson claims that the Commissioner’s conclusion is not supported by the record. He seeks reversal of the judgment of the Appellate Division and a remand for further proceedings on his cross petition for review of incapacity. We sustain Ibbitson’s appeal, reverse the judgment of the Appellate Division and remand for further proceedings.

On January 17,1979, Ibbitson was injured in the course of his employment as a construction worker for the Sheridan Corporation when a plank fell and struck him on the head and shoulder. On March 8, 1979, the Industrial Accident Commission approved an agreement between Ibbitson and his employer that he would be paid compensation for total incapacity from the date of the injury. Less than three weeks later, the employer filed a petition for review of incapacity, pursuant to 39 M.R.S.A. § 100 (1978),1 seeking to modify its duty under the March 8th agreement. After a hearing, the Commission, deciding that Ibbitson’s condition had improved, reduced his compensation to fifty percent disability as of September 21, 1979. The record does not reveal the Commission’s findings as to the nature of the injury at that time. On appeal by Ibbitson, this Court affirmed the pro forma judgment of the Superior Court affirming the Commission’s decision. Ibbitson v. Sheridan Corp., 422 A.2d 1005 (Me.1980). The only issue raised on that appeal was whether “the Commission erred in evaluating the function, and in consequence the adequacy, of evidence presented by [Ibbit-son] as to his efforts to find remunerative work.” Id. at 1007.

On April 21, 1981, the employer filed a second petition for review of incapacity, seeking to modify its duty under the last decree by the Commission. One week later, Ibbitson filed a cross-petition for review of incapacity. A hearing was held on July 16, 1981, in Waterville, Maine, at which Dr. James Butler and Ibbitson testified concerning Ibbitson’s disability.

Dr. Butler, an orthopedic surgeon, testified that he first examined Ibbitson eight days after he sustained the injury at work. At that examination, Ibbitson complained that he had been suffering from some pain and discomfort in his shoulders for at least twelve weeks before the examination. On the basis of x-rays taken at that examination, Dr. Butler determined that Ibbitson had suffered from an osteoarthritic condition of the upper and mid-dorsal spine prior to the work incident. It was Dr. Butler’s diagnosis that the work incident caused an acute ligamentous strain of Ibbitson’s upper and mid-dorsal spine and also aggravated the preexisting osteoarthritic condition in that area. He did not know to what extent the preexisting condition had troubled Ib-bitson before the accident but stated that “since the time of the injury he’s had increasing symptoms.”

Dr. Butler last examined Ibbitson in December of 1980. On the basis of that exam[737]*737ination, he stated his opinion that Ibbitson’s incapacity remained essentially unchanged from the time of the first examination. At the December, 1980, examination, he advised Ibbitson that he should not lift anything greater than fifteen to twenty pounds or perform work requiring him to lift his arms over his shoulders or head. Even though Ibbitson’s condition had remained essentially unchanged since the January, 1979, examination, Dr. Butler testified that the ligamentous strain would have resolved itself sometime before the December, 1980, examination. After testifying that the lig-amentous strain had long since resolved itself, Dr. Butler gave the following key testimony: “I think most of his [Ibbitson’s] problem at the present time, to answer all the questions really, is stemming from a pre-existing condition of his spine which has been aggravated, made worse possibly, by the injury in question. Although how much more, I really don’t know.” Responding to further questioning by the employer, he shortly thereafter stated that “the arthritic condition in his spine has been aggravated to a certain extent by the injury that he incurred, and a person doesn’t get any younger, and as we age, the arthritis usually gets worse, so it may not all be due to the injury at work. It may be due to — just to the process of aging, and also possibly to inactivity.” Finally, Dr. Butler stated he would not have placed any work limitations on Ibbitson before the injury because, although he was not completely asymptomatic, he was not having problems performing his work.

Ibbitson testified that activities such as lifting and carrying aggravated his condition and caused him considerable pain. He did not believe that his condition had improved much, if at all, since September of 1979. He also testified about his unsuccessful efforts to find employment.

On August 5, 1981, the Commissioner ruled that Ibbitson’s incapacity had ended and ordered the termination of his compensation benefits. Ibbitson duly moved for findings of fact and conclusions of law. The Commissioner set forth his findings on January 29, 1982, concluding that “the employee ha[d] recovered his pre-accident work capacity.” He based that conclusion on his finding that “the employee sustained a ligamentous strain at work on January 17, 1979, and ... that this ligamentous strain has resolved itself.” Ibbitson’s appeal to the Appellate Division was denied on the ground that competent evidence of record supported the Commission’s findings. We granted Ibbitson’s petition for appellate review on March 17, 1983.

On the present appeal, we are reviewing the Commissioner’s decision granting the employer’s petition for review of incapacity.2 The key issue before the Commissioner was whether there had been a change in circumstances since the earlier determination that Ibbitson was entitled to compensation on the basis of fifty percent disability. Dufault v. Midland Ross of Canada, Ltd., 380 A.2d 200, 203 (Me.1977). As petitioner, the employer had the burden of showing either that Ibbitson’s work incapacity had diminished or ended or that the cause of his continuing disability had changed. Id. In other words, the employer had the burden of demonstrating “by a fair preponderance of the evidence that the effect of the accident ha[d] ended.” Soucy v. Fraser Paper, Ltd., 267 A.2d 919, 921 (Me.1970).

The factual basis for the Commissioner’s decision to terminate Ibbitson’s compensation benefits is not clear. A reading of his findings of fact and conclusions of law reveals two possible bases for his conclusion that the incapacity for which Ibbitson was being compensated had ended. Neither basis is tenable, however.

First, the Commissioner expressly decided that Ibbitson “has recovered his pre-acci-dent work capacity.” On the basis of the [738]*738evidence before the Commissioner, this conclusion is clearly erroneous. Only Dr. Butler and Ibbitson testified before the Commissioner concerning Ibbitson’s disability. Dr.

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Related

Canning v. State Department of Transportation
347 A.2d 605 (Supreme Judicial Court of Maine, 1975)
Dufault v. Midland-Ross of Canada, Ltd.
380 A.2d 200 (Supreme Judicial Court of Maine, 1977)
Ibbitson v. Sheridan Corp.
422 A.2d 1005 (Supreme Judicial Court of Maine, 1980)
Soucy v. Fraser Paper, Limited
267 A.2d 919 (Supreme Judicial Court of Maine, 1970)
Bryant v. Masters MacHine Co.
444 A.2d 329 (Supreme Judicial Court of Maine, 1982)

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Bluebook (online)
463 A.2d 735, 1983 Me. LEXIS 765, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ibbitson-v-sheridan-corp-me-1983.