Lowe v. C. N. Brown Co.

448 A.2d 1358, 1982 Me. LEXIS 756
CourtSupreme Judicial Court of Maine
DecidedAugust 13, 1982
StatusPublished

This text of 448 A.2d 1358 (Lowe v. C. N. Brown Co.) 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
Lowe v. C. N. Brown Co., 448 A.2d 1358, 1982 Me. LEXIS 756 (Me. 1982).

Opinions

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 [1360]*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[1361]*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

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448 A.2d 1358, 1982 Me. LEXIS 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-c-n-brown-co-me-1982.