Opinion
No. 3788.
Decided January 5, 1949.
Where an employee suffered a ruptured hernia as the result of an injury which was compensable under the Workmen's Compensation Act and upon resumption of his work suffered a second hernia during the course of his employment which resulted directly from the first, he was entitled to recover for the second period of disability, although an appendectomy prior to the first operation contributed to the weakness in the area where the hernia occurred. Under the Workmen's Compensation Act, earnings of an employee after an accident are not determinative of an award for partial incapacity; the real test is ability to earn. The qualifications of expert witnesses are for the Trial Court.
PETITION for workmen's compensation under R.L., c. 216, because of an accident suffered on June 18, 1946, by the plaintiff while in the employ of the defendant company. The Court found a verdict for the plaintiff for $1,843.75 which included an award of $20 weekly for total disability from June 19, 1946 to October 7, 1946, and from October 30 of the same year to January 27, 1947, and for partial incapacity to earn for the balance of the statutory period. The defendant excepted to the refusal of the Court to set aside that portion of his findings awarding compensation from October 30, 1946 to January 27, 1947 and to the award for partial incapacity. During the hearing the defendant also excepted to the admission and exclusion of evidence.
The defendant admits the occurrence of the original injury which resulted in a hernia and that the ensuing disability from June 19, 1946 to October 7, 1946 was compensable. It appears that the plaintiff had been operated on for appendicitis some six years before and that the scar from this operation was about an inch from the incision necessitated by the hernia. He had made a complete recovery from the appendectomy and at the time of his injury had no disability. The doctor testified that the proximity of these incisions produced weakness in this area which developed into a second hernia shortly after the plaintiff returned to his work, which required some heavy lifting, and that this second hernia was the result of the accident of June, 1946. The operation necessitated by the second hernia caused the losses which are disputed by the defendant. After the plaintiff resumed his duties in January, 1947 he received more pay per hour than before he was out as there had been an increase in wages, but the superintendent testified his earning capacity had decreased "around ten to fifteen per cent" due to the handicaps from which he suffered. There was evidence that these disabilities resulted from the accident, and that they consisted in the fact that the plaintiff could no longer do heavy work, would have to wear a truss for a "long time," would probably be forced to undergo a third operation, that it would be more difficult for him to find a job and that he suffered some pain and would have to be careful in the future. Further facts appear in the opinion.
Transferred by Goodnow, C.J.
Albert J. Lemieux (by brief), for the plaintiff.
Alvin A. Lucier and Normand R. Pelletier (by brief), for the defendant.
The defendant admits in its brief that the plaintiff is entitled to $20 weekly compensation from June 19, 1946 to October 7, 1946, as a result of the injury suffered June 18 of the same year. It contends, however, that the plaintiff's subsequent period of disability extending from October 30, 1946 to January 27, 1947, is not compensable as this disability was not caused by accident arising out of and in the course of his employment. It further claims for this reason no award of permanent partial disability was warranted, and that there was no evidence of loss of future earning capacity. The defendant cites no authority for the proposition that the subsequent rupture of the plaintiff, which admittedly was properly found connected with the original injury, cannot be a basis for an award and we know of no well considered opinion which so holds. The defendant concedes that were this an action for negligence at common law it would be liable, but says the act is to be strictly construed and recovery may be had only for the "direct result" of the accident. Not only is this theory apparently unsupported by authority but it is contrary to the liberal rule of construction which courts in general, including ours, have applied to the statute and is at variance with the reasoning of our decisions. See Vallee v. Company, 89 N.H. 285, 287, where the court stated "A substantial fallacy in the defendant's argument appears to be in its insistence that the direct consequences of the accident are limited to the immediate ones." See also, O'Brien v. Manchester Yarn Mills, ante, 118; Rivard v. McElwain, ante, 100; Horovitz, Current Trends in Workmen's Compensation (1947) pp. 509, 511. In the case before us the Trial Court found on ample evidence that the second rupture resulted directly from the first, which in turn was caused by the accident of June 18. The accepted tests of causation are thus met and the defendants' contention fails. It follows that the plaintiff was entitled to recover for the period of disability resulting from the second operation and the Trial Court's ruling to this effect is sustained.
We come now to the defendants' final argument that there was no evidence to sustain an award of $4 weekly for the balance of the statutory period for partial disability. The doctor and the mill superintendent, both called by the plaintiff, testified that his earning capacity was reduced, as he no longer could do heavy work, and the superintendent added that it would be harder for him to find work. The doctor went on to explain that probably the plaintiff would have to be operated on again as a result of the weakness caused by the incisions, he would have to wear a truss "for a long time" and that he should be careful. The defendant excepted to the testimony as to reduced earning capacity, but the qualifications of these witnesses were for the Court and his allowance of their opinions seems unobjectionable. Dowling v. Shattuck, 91 N.H. 234; Ricker v. Matthews, 94 N.H. 313; Ware v. Railroad, 92 N.H. 373.
It has long been settled in this state that under the act earnings after an accident are not determinative of an award for partial incapacity, but the real test is ability to earn. Gagne v. Company, 87 N.H. 163; Peak v. Company, 87 N.H. 350; Gallienne v. Company, 88 N.H. 375. Upon his return to work, due to a general wage increase, the plaintiff's earnings were more than he had received before the accident. Whether or not without the increase, they would have been the same, is not readily apparent. But assuming that they would have been, it "does not follow from this, however, that, as a matter of law, he is entitled to no compensation. . . . Actual wages earned after injury are but one of the evidentiary facts to be considered with such others as may be material in arriving at the operative fact of loss of earning capacity." Peak v. Company, supra, 352.
There was evidence that in performing his work after January 27, 1947, the plaintiff required assistance in lifting, that he was compelled to favor himself, that it would be difficult if occasion arose to find employment comparable to the work he was doing and in which he was trained, and that he was no longer able to do heavy manual labor. The Trial Court was not required to accept his actual earnings at face value, but acted within his discretion within the statutory limitations in basing a finding of loss of earning capacity upon the other affirmative evidence of its impairment. (See Annotation, 149 A.L.R. 413).
Decree affirmed.
All concurred.