Opinion
No. 4696.
Argued February 3, 1959.
Decided February 27, 1959.
1. Although the defendant saved no exceptions during the trial of a petition for workmen's compensation and made no motions until after the Court vacated its original findings made as requested by the defendant, and amended its decree increasing the previous award to the plaintiff, fairness required that the defendants' exceptions relating to the first decree be considered.
2. In determining loss of earning capacity resulting from permanent partial disability in a workmen's compensation case it was proper to consider, in connection with other evidence, the plaintiff's lack of education and experience and the limiting effect his injuries had upon his activities. So also, the Trial Court could properly apply its general knowledge as a basis of reasonable forecast.
3. In the absence of legislative intent, expressed or implied, a plaintiff who has suffered permanent partial disability is not entitled to counsel and medical witness fees or to interest on workmen's compensation due from the date when each installment became payable.
APPEAL, from an award by the Labor Commissioner under RSA 281:37, which awarded compensation to the plaintiff for a period of 49 8/10 weeks at $33 per week for permanent partial disability. RSA 281:25. The appeal was tried by the Court, at the conclusion of which the plaintiff and defendants submitted requests for findings of fact and rulings of law. Shortly thereafter, the Court handed down its "Findings of Fact, Rulings of Law and Decree," to which the plaintiff alone excepted and filed a motion to set aside the decree. After a hearing, the plaintiff was permitted to reopen the case "to permit reception of evidence on the issue of loss of earning capacity of the petitioner."
A further hearing held pursuant to the Court's order resulted in "amended Findings of Fact, Rulings of Law and Decree," in which it was ordered that the defendants pay the plaintiff the sum of $15 weekly for a period of 249 weeks, together with the bills for medical treatment incurred by the plaintiff. The defendants, Producers Dairy, Inc. and American Mutual Liability Insurance Co., thereafter excepted to both the original and amended findings, rulings and decree, and to the refusal of the Court to grant certain requests for findings and rulings. The plaintiff excepted to the denial of his request that the Court grant him six per cent interest from the day each installment was due and to the denial of an award of counsel fees and of medical witness fees.
It appeared that the plaintiff, a milkman forty-three years old, while employed by the defendant Producers Dairy, Inc. as he had been for some nineteen years, injured his back because of on January 12, 1954, arising out of and in the course of his employment. He worked until the early morning of January 14, when he was forced to stop because of pain. There followed a long course of treatment ending in a spinal fusion operation on October 13, 1954. Under a compensation agreement made on February 15, 1954, he received $33 weekly for a period of 70 weeks. He incurred medical bills amounting to $1,795.
The plaintiff never returned to work for the defendant Dairy, but did engage in selling insurance with his wife, commencing in June, 1955, and for a time he also served as treasurer for a club. At the time of his injury, his average weekly wages were $87.50. After the accident, there was evidence that his gross average weekly earnings were around $60. The Court in its amended decree found that his earning capacity after the accident was an average weekly wage of $65, and two-thirds of the difference between this and the $87.50 average weekly wage he earned before the accident was $15. It ordered payments to the plaintiff in this amount for a period of 249 weeks, plus his medical expenses. Further facts appear in the opinion. Transferred by Sullivan, J.
Earley Flynn (Mr. Flynn orally), for the plaintiff.
Sullivan Gregg and Charles F. Keeley (Mr. Keeley orally), for the defendants.
At the outset we are met with the plaintiff's claim that the defendants may not raise any questions relative to the first decree since they saved no exceptions during the trial and made no motions until after the amended findings, rulings and decree were filed. It is true, as the plaintiff argues, that such conduct would ordinarily bar the defendants from relief. See Perreault v. Lyons, 98 N.H. 317; Superior Court Rule 57, 99 N.H. 617. However, here the Court vacated findings made at the defendants' request following the first hearing, and by amending its decree awarded the plaintiff approximately twice as much as it had originally. In view of this we believe fairness requires that we consider the defendants' exceptions.
Their first contention that there was insufficient evidence upon which to base a finding of the earning capacity of the plaintiff after the accident does not require extended consideration. The record shows that the Court had a complete picture of the plaintiff's previous work history, his education and training, his capacity to work after the accident, the sort of work he was doing, the nature and degree of the injury to his back, its effect on his activities, and his earnings past and present. This is adequate evidence to support the Court's finding. Hill v. Company, 96 N.H. 14, 17; Dowling v. Shattuck, 91 N.H. 234, 241-242. By the same token, the Court could fairly estimate the loss of his capacity to earn as a result of the accident. Peak v. Company, 87 N.H. 350, 352. In so doing, the Court was required to exercise its judicial discretion. Dunbar Fuel Co. v. Cassidy, 100 N.H. 397, 403. In this connection, it might properly consider the plaintiff's lack of education and experience, the limiting effect upon his activities of the back injury, and in its consideration the Court was entitled to use its "general knowledge . . . as a basis of reasonable forecast." Vallee v. Company, 89 N.H. 285, 289. Its determination of the plaintiff's earning capacity is "not made conjectural because [more] direct evidence concerning it is not introduced." Dunbar Fuel Co. v. Cassidy, 100 N.H. 397, 403. Neither is its validity affected because it bore close relation to his actual earnings. Desrosiers v. Company, 98 N.H. 424, 426. It appears to us that the figure the Court reached was well within the bounds of reason and the defendants' exceptions on the grounds that the plaintiff failed to sustain his burden of proving his loss of earning capacity are overruled.
The defendants further argue that the Court erred in finding that partial disability would continue for the maximum period permitted by the statute (RSA 281:25; see also, Bolduc v. Company, 97 N.H. 360, 368), or in this case, for 249 weeks, after deduction for previous payments for 70 weeks. There was medical evidence that the plaintiff's physical disability of twenty per cent was permanent. This was not disputed by the defendants. Considering the plaintiff's work history, his condition, the wages he could probably command and other relevant factors, as was the Court's privilege (Hill v. Company, 96 N.H. 14, 17), no reason appears why its estimate of probable future losses was not proper, and it follows the defendants' exceptions thereto cannot be sustained. Vallee v. Company, 89 N.H. 285, 289. Moreover RSA 281:25 provides that payments shall not continue after the disability for work ends. Cassidy v. Company, 98 N.H. 441.
The final questions presented by the record are of first impression here and consist of the plaintiff's exceptions to the failure of the Court to allow interest at the statutory rate on the compensation due from the date when each installment became payable, and to the refusal to allow expenses for counsel fees and expert medical testimony. Although it is true, as the plaintiff claims, that a liberal interpretation has always been given our law, as obviously in accord with the legislative intent, we are faced with the further proposition that where the legislative intent is not expressed or fairly to be implied, it is not our province to supply it. Our compensation law (see RSA 281:39, 45), contains nothing express nor from which we think it may fairly be implied that the Legislature intended either interest or counsel and medical witness fees to be paid by the defendant in such case. Decisions in other jurisdictions, depending on different statutes and policies, are not controlling here. Cf. Parker v. Brinson Construction Co. (Fla.) 78 So.2d 873. While conceding the force of the plaintiff's argument, "the stark fact remains that the remedy for this situation is legislative and not judicial." Prassas v. Company, 100 N.H. 209, 211. This appears to dispose of all exceptions of merit and the order is
Decree affirmed.
All concurred.