Summary
In Dunbar the Supreme Court of New Hampshire recognized that the compensation act did not contain a specific provision for apportionment between successive employers.
Summary of this case from Kidder v. Coastal Construction Co., Inc.Opinion
No. 4503.
Argued December 4, 1956.
Decided January 31, 1957.
Where an employee in the course of a prior employment suffered a compensable shoulder injury resulting in a condition which was a preexisting and contributing cause of permanent partial disability when the shoulder was again injured in the course of a second employment with a different employer, the burden of workmen's compensation is to be apportioned between the two employers, not arbitrarily but in accordance with the respective liability of each under the act.
Where an award under the Workmen's Compensation Law for temporary partial disability (RSA 281:25) would exceed the scheduled allowance for permanent partial disability provided by s. 26 the more favorable award should be made (s. 27).
In determining an award for partial disability under the Workmen's Compensation Law (RSA 281:25) earning capacity after injury need not necessarily be supported by direct evidence but is determinable in the exercise of judicial discretion and within statutory limits, upon all the circumstances including his inability to perform his usual work or to engage in other trades or employment as the result of the injury.
APPEAL, under the Workmen's Compensation Law (RSA 281:37) from a decision of the Commissioner of Labor by which permanent partial disability was awarded to Cassidy. The disability was found by the Labor Commissioner to have resulted from two separate accidents suffered while he was in the employ of two different employers and each employer was ordered by him to pay one-half of the compensation awarded. The action has previously been before this court on another issue. Cassidy v. Company, 98 N.H. 441.
Trial by the Court. (Leahy, J.) who made the following findings of fact and rulings of law:
"Charles A. Cassidy was injured on November 27, 1950, while in the employ of Dunbar Fuel Co., Inc. He slipped while emptying a coal car and suffered an injury to his left shoulder. Compensation was paid during the time he appeared to be disabled, but no final agreement was signed by Mr. Cassidy. Mr. Cassidy subsequently obtained employment at Fellows Son, Inc. On March 17, 1952, he received a definite injury to his left shoulder. Compensation was paid . . . for a period of about 25 weeks. It was then found that an operation was necessary because of the condition of the shoulder. This condition is described as a chronic recurrent subluxation of the shoulder. The operation corrected the condition but left Mr. Cassidy with a 25% permanent partial disability in the use of his left arm.
"It is found that the first accident of November 27, 1950, left Mr. Cassidy's shoulder in such condition that a subsequent injury to it would produce the result now had. He was not disabled, however, and was able to work. The accident of March 17, 1952, aggravated a present physical weakness in the shoulder which probably enlarged the nature of the injury suffered on that date with the consequent disability. The Court finds that the permanent partial disability of Mr. Cassidy is the result of a definite injury to his left arm caused by the accident of March 17, 1952, which aggravated a prior existing condition in Mr. Cassidy's left shoulder. This disability, together with such aggravation of a prior condition is found to be compensable solely by Fellows Son, Inc. and its insurance carrier . . . . Dunbar Fuel Co., Inc. and the Massachusetts Bonding Insurance Company are not required to contribute compensation payments.
"Charles A. Cassidy seeks compensation on the basis of incapacity to work and consequent loss of earnings. While this would result in a larger award than obtainable under section 24 of the act (now s. 26), it requires a finding as to the extent of the disability as it affects his ability to earn within his abilities heretofore existing. Cassidy is essentially a laborer. He demonstrated that he could raise his arm above shoulder level. While he may have had difficulty at one time holding a pipe over his head as a plumber's helper, it appeared to the Court from observation that this difficulty could be overcome. It is found that he can still do some shoveling but to what extent cannot be determined. Any attempt by the Court to determine his lack of earning capacity would be based on pure conjecture. An award under section 24, as amended, can be made and supported by evidence. Charles A. Cassidy is awarded compensation on the basis of a 25% permanent partial disability to his left arm under Chap. 75, Laws of 1951, Sec. 1, I. He was paid compensation during the healing period. Compensation is awarded for 42 1/2 weeks at the rate of $24.27 a week."
The exceptions of Cassidy to the denial of his requests for findings and rulings and his motion that the Court's findings and rulings be set aside as well as the exceptions of Fellows Son, Inc. to the denial of its requests for findings and rulings were reserved and transferred by the Trial Court.
Wyman, Starr, Booth, Wadleigh Langdell, Philip G. Peters and Charles J. Dunn (Mr. Peters and Mr. Dunn orally), for Dunbar Fuel Co., Inc. and Massachusetts Bonding Insurance Co.
Broderick, Manning Sullivan (Mr. Broderick orally), for Charles A. Cassidy.
Devine Millimet (Mr. Millimet and Mr. Shane Devine orally), for Fellows Son, Inc. and Lumbermen's Mutual Casualty Co.
The employee in this case suffered two compensable injuries, the first in the course of his employment by Dunbar Fuel Co., Inc. and the second while employed by Fellows Son, Inc., both of which, as found by the Court, contributed to cause his now permanent partial disability. The exceptions of the latter company present the issue of whether the full amount of compensation to which the employee is now entitled is to be paid by it as the employer at the time of the most recent injury bearing causal relation to the disability or is to be apportioned between the two employers.
Ordinarily when an accidental personal injury, compensable under the workmen's compensation law, aggravates or renders disabling a pre-existing physical condition, the employer is required to pay the full amount of compensation to which the employee is entitled because of the resulting disability without regard to the extent to which the pre-existing condition contributed to the disability. Walter v. Hagianis, 97 N.H. 314, 317, and cases cited. It does not follow, however, that when an earlier compensable injury. for which another employer is responsible causes a condition which is a pre-existing and contributing cause of further disability resulting from a second injury there should be no apportionment of compensation between the two employers.
Our compensation law contains no specific provision for apportionment between successive employers. It does, however, impose responsibility on each employer for disability caused by "accidental injury . . . arising out of and in the course of the employment" (RSA 281:2 III), whether the employee becomes disabled at the time of the accident or at some time thereafter. See Davis v. Manchester, 100 N.H. 335; Desrosiers v. Company, 97 N.H. 525. Subject to the applicable statutory limitations such as notice (Laws 1947, c. 266, s. 15, at the time of the first accident in this case, now RSA 281:17) and maximum benefits (Laws 1947, c. 266, s. 28 at the time of the first accident, now RSA 281:30) the responsibility of the employer at the time of the first injury, if that injury does not result in permanent partial disability (see RSA 281:47), continues as to future disabilities which may result from it. It follows that if injuries suffered in more than one employment each contribute to a disability, the burden of compensation is to fall upon each responsible employer to the extent of his respective liability imposed by the law.
Since an award under our law is for "disability for work resulting from an injury" (RSA 281:23, 25) an apportionment of compensation cannot be arbitrarily made in equal amounts between the responsible employers as was done in Anderson v. Babcock Wilcox Co., 256 N.Y. 146, but compensation must be awarded against each responsible employer according to his statutory liability. Within the limits of that liability, each employer is required to provide compensation, not in the full amount for which he would be liable if he were the only employer but only for so much thereof as represents the proportion of the whole disability which is attributable to the injury sustained in his service. See Denver Producing Refining Co. v. Phillips, 163 Okla. 106. Since awards were not made in this manner by the Superior Court the case must be remanded. Upon further hearing in the Superior Court, the question of the extent to which the injury incurred in the employ of Dunbar Fuel Co., Inc. contributed to the employee's disability, raised by the motion of Fellows Son, Inc. filed in this court after argument, may be considered and action upon that motion here becomes unnecessary.
The Massachusetts rule placing full liability upon the employer at the time of the "more recent injury bearing a causal relation to the disability" (Fitzpatrick's Case, 331 Mass. 298, 300) relied on by Dunbar Fuel Co., Inc. is based upon the requirement in that state that the "insurer . . . compensate him . . . for incapacity resulting from . . . injury received during the period covered by the policy" (Evan's Case, 299 Mass. 435, 436) and is not applicable under our law.
If it is deemed that the administration of the law would be more practical if full responsibility for compensation were placed upon the last employer as is done in Massachusetts or that the burden should be divided arbitrarily on an equal basis between the employers responsible for the disability as is done in many states, the determination must be made by the Legislature.
Dunbar Fuel Co., Inc. contends that the present proceedings against it, commenced on June 3, 1952, are in effect an application under RSA 281:40 for modification of an award made by agreement under section 36, that they were not brought within one year after the last payment fixed by that award and are therefore barred by the provisions of section 40. It is unnecessary to decide whether such is the case because the company never raised this question before the Trial Court and the Commissioner "retained jurisdiction of the original application." Cassidy v. Company, 98 N.H. 441, 446.
There remains for consideration the Court's denial of Cassidy's claim for compensation under Laws 1947, c. 266, s. 23 (now RSA 281:25 and hereafter referred to as section 25), which permits an award for partial disability for not exceeding three hundred weeks on the. basis of a fixed percentage "of the difference between his average weekly wage before the injury and the average weekly wage which he is able to earn thereafter." The award of the Court was made under the provisions of Laws 1951, c. 75, s. 1 I, XX (now RSA 281:26 I, XX and hereafter referred to as section 26 I, XX) which limits the payments for a 25% permanent partial loss of use of an arm to a period of forty-two and one-half weeks at two-thirds of the employee's average weekly wage before the accident. If Cassidy was entitled to an award under section 25 and such an award would have been larger than one made under section 26 I, XX as it existed at the time of the second accident, he is entitled to the larger award by the terms of Laws 1949, c. 152, s. 3 (now RSA 281:27). It is his position that the Trial Court erred in denying his claim under section 25. With this contention we must agree.
Cassidy was entitled to compensation from Fellows Son, Inc. under section 25 if his average weekly wage before his second accident was greater than the average weekly wage which he was able to earn "in suitable work under normal employment conditions" (Desrosiers v. Company, 98 N.H. 424, 427) after that accident with the disability of his left arm. Similarly he was entitled to compensation from Dunbar Fuel Co., Inc. under section 25 if his average weekly wage before his first accident was greater than the average weekly wage he was able to earn after his second accident. The Trial Court found that an award under section 25 "would result in a larger award than obtainable under section [26]" (emphasis supplied), that such an award "requires a finding as to the extent of the disability as it affects his ability to earn" and concluded that "any attempt . . . to determine his lack of earning capacity would be based on pure conjecture. An award under section [26] can be made and supported by evidence." As we understand these rulings, they were applicable only to Fellows Son, Inc. and it was the decision of the Court that Cassidy's earning capacity after the second accident with one partially disabled arm was sufficiently less than his average wage before that accident to make an award under section 25 greater than one made under section 26 but that the claim under section 25 must be denied because a computation of the difference would be a matter of conjecture, as contrasted with an award under section 26 based on the medical evidence in support of a 25% disability of the arm. Cassidy's requests for rulings of law seeking consideration, on the question of earning capacity, of his inability to "now perform a laborer's work" and to "compete in the labor market under normal conditions with others with two. sound arms for . . . laborer's jobs" were denied. In so denying the claim and the employee's requests, the Court appears to have applied too limited a rule of proof as to earning capacity after injury.
Earning capacity after injury cannot be determined solely on the basis of direct and positive testimony but requires, "within the limits established by the statute, the exercise of judicial discretion." Dearosiers v. Company, 97 N.H. 525, 531. In this connection, actual earnings after injury are not conclusive of but merely an evidentiary aid in determining earning capacity at that time. Peak v. Company, 87 N.H. 350, 353. Similarly, although the fact that the employee is disabled in the medical sense does not entitle him to compensation under section 25 "unless it produces a loss in earning capacity" (Dearosiers v. Company, 98 N.H. 424, 426), it may be considered in determining what the earning capacity after injury is. If that capacity includes a capacity in callings other than the occupation or trade in which the employee was working at the time of the accident, it is to be considered (Desrosiers v. Company, 98 N.H. 424, 427); if it includes no such other capacity but is limited, in comparison with its extent before injury, by the employee's inability to secure employment under normal employment conditions, that fact is also to be considered.
There appears to be no question that the employee in this case was thirty-four years of age in March 1952, that he completed the sixth grade in school and has always been a laborer on unskilled manual jobs. Prior to his first accident, he had the full use of both of his arms and was earning $38 per week. As found by the Court, he now has a "25% permanent partial disability in the use of his left arm" due to limitation of motion in external rotation of the shoulder. Taking these facts into account together with those found concerning Cassidy's ability to hold a pipe over his head and to shovel, the Court had a sufficient basis for forming an opinion as to his earning capacity after injury.
It is generally known that under normal employment conditions, the ability to obtain work and hence the earning capacity of one whose capabilities are limited to unskilled manual labor will be affected if the use of either of his arms is impaired. An estimate of earning capacity with such a disability is not made conjectural because direct evidence concerning it is not introduced. "In some degree general knowledge is also available as a basis of reasonable forecast." Vallee v. Company, 89 N.H. 285, 289. The Trial Court determined the general fact that Cassidy's earning capacity after his second accident was less than his average weekly wage before his first accident and that an award of compensation under section 25 would exceed one made under section 26. Therefore it should have exercised its discretion, on the basis of the evidence before it, in fixing an amount representative of that capacity and awarded compensation under section 25.
Remanded.
All concurred.