Opinion
No. 4899.
Argued December 7, 1960.
Decided January 20, 1961.
1. In a petition for workmen's compensation testimony as to why the injured workman's employer had not re-employed him following a ruptured intervertebral disc injury in the course of his employment, after his employer had allegedly promised to do so, was relevant on the issue of his loss of earning capacity as the result of the accident and was improperly excluded.
2. Where the Trial Court improperly excluded certain testimony which was relevant to the matter in issue such exclusion may not be justified on the ground that the questions of the witness were leading when no such suggestion was offered at the trial and the Trial Court exercised no discretion with relation thereto.
3. In a petition for workmen's compensation the sole fact that a workman's post-injury earnings exceeded the earnings he received prior to his injury does not conclusively establish that he suffered no loss of earning capacity where there was evidence that the claimant was an unskilled laborer and had suffered partial disability to his back as the result of the accident.
PETITION, against the town of Wolfeboro and Hartford Accident and Indemnity Company to recover compensation under RSA ch. 281. Trial by the Court resulting in a denial of compensation. During the trial the plaintiff excepted to the admission and exclusion of evidence, and after the decree was rendered he excepted to the failure of the Court to grant certain requests for "findings of fact and rulings of law" and to the findings of fact and rulings of law as made by the Court in favor of the defendant. He further excepted to the denial of his motion to set aside the decree and enter an award in his favor.
It appears that the plaintiff, twenty-six years of age and possessing a secondary school education, hurt his back on June 11, 1957 when working for the defendant town while lifting a curbstone. He had been working for the defendant over three years and this had been his first and only job since leaving school, aside from a tour of duty in the Army. After some weeks of disability, his injury was diagnosed as a ruptured intervertebral disc, and a back fusion operation was performed which disabled him totally for a further period of about nine months. He then tried unsuccessfully on several occasions to obtain employment with the town, which he claims had promised to hire him back when he recovered enough to go to work, but was unsuccessful.
He also applied for numerous other jobs and was turned down until finally he obtained a temporary position in a state liquor store. This required him to wait on customers, stock shelves, help unload cases of liquor at times, and occasionally to attend the cash register. Having lost this position, he did various handy man chores and was so engaged at the time of the trial.
The defendant introduced no evidence and the undisputed testimony of the claimant's doctor was that the plaintiff has a permanent injury to his back, causing pain and stiffness there, that he cannot perform sustained or heavy manual labor as he did before the accident, that he is more apt than an ordinary person to have future trouble with his back, that he suffers some loss of balance, that his over-all physical disability is twenty per cent. and his capacity to work as a laborer is also diminished twenty per cent. The plaintiff testified that he suffers much pain and cannot lift heavy objects, do pick and shovel work, nor bend forwards nor backwards normally as he did before the accident. He claims he has lost so much weight that he cannot wear the back brace which he is supposed to put on when he works.
Further facts appear in the opinion.
Transferred by Leahy, C. J.
James J. Kalled and George W. Walker (Mr. Walker orally), for the plaintiff.
Walter A. Calderwood and Louis H. Silverman (Mr. Silverman orally), for the defendants.
The plaintiff's first contention is that the Court erred in excluding certain questions put to a past and also a present highway agent of the defendant as to why the plaintiff was not re-employed by the town after his accident. He claims that although he had been promised re-employment, he did not get his job back because the agents did not believe he could do the laborious work demanded on account of his injury. The purpose of the questions was to bring out this fact.
The defendant's main objection to the introduction of the evidence rests on the argument that the answers at best could only have shown that the agents "were of the opinion that the petitioner could not perform the work" and that this opinion had no bearing on the question whether the "petitioner could actually do the work; or in proving" that his earning power was diminished. We believe the objections, and the Court's ruling which the record discloses accepted the defendant's reasoning, missed the point. It is true that the evidence would have been inadmissible to prove the actual extent of the plaintiff's disability, since as to this it would clearly have been hearsay. Caplan v. Caplan, 83 N.H. 318, 321. However, it was relevant to show that the reason why they refused to rehire the plaintiff was because of his accident. Dane v. MacGregor, 94 N.H. 294, 297; Caplan v. Caplan, supra. If he could do the work but could not get re-employment on account of his injury, his "earning capacity [was] as much impaired as if he were physically disabled to the extent that he could do no work. If such cause and effect are presented, the precise way in which one operates to bring them about is of no importance." Fennell's Case, 289 Mass. 89, 94; see also, Osterlund v. State, 135 Conn. 498. The fact that the plaintiff was able to procure some work does not affect the admissibility of this evidence, since the undisputed testimony is that he had not been able to obtain the sort of permanent employment which he had formerly enjoyed. See Peak v. Company, 87 N.H. 350, 352.
If it may be argued that some of the questions were leading, the defendant's failure to suggest this ground at the time waived its rights to now raise the issue. Gardner v. Company, 79 N.H. 452, 457. In any event, the matter of leading questions was one for the Trial Court's discretion, which the record shows was not exercised here, and for this reason among the others mentioned, the plaintiff's exceptions to the Court's refusal to admit the evidence are sustained. Reynolds v. Company, 98 N.H. 251.
Since there must be a new trial, it seems advisable to take up certain matters as an aid to the Court in future proceedings. Defendant's request for "findings of fact and rulings of law" No. 11, to the granting of which the plaintiff excepted, reads as follows: "The wages earned by the Petitioner during this period [June to November 1958] were in excess of the wages he earned while employed immediately prior to his injuries and clearly demonstrate that he had suffered no loss of earning capacity." If this is to be understood as a ruling of law that these post-injury earnings showed conclusively no loss of earning capacity, it was error. Dunbar Fuel Co. v. Cassidy, 100 N.H. 397, 403.
The record discloses that the plaintiff had no special skills, experience or training to fit him for anything but manual labor as a truck driver, road worker, handy man, or in some similar capacity. In the Dunbar case, supra, an unskilled laborer such as the plaintiff here, suffered a twenty-five per cent loss of the use of one arm. Our court observed there that it was "generally known" that under normal conditions the earning capacity of an unskilled laborer "will be affected if the use of either of his arms is impaired." Id., 403. The case was remanded with directions to the Trial Court to use its discretion in fixing an award of compensation for disability. Id., 403-404. If upon retrial the excluded evidence discloses that the plaintiff was refused employment because of his physical disability it will be for the Trial Court to determine in the light of the finding that the plaintiff here has a "limited back motion as to forward and backward bending in the lower portion of his back" whether an impairment of earning capacity was established on the record as a whole.
The plaintiff finally raises the question as to the method by which average weekly post-injury earnings are to be computed under RSA 281:25 (supp) covering awards for partial disability, either temporary or permanent. Carter v. Brown, 102 N.H. 271. Since the Court decided there was no loss of earning capacity, the question was not reached in the present case. However, the statute provides that the claimant shall be entitled to two-thirds of the difference between his average weekly wages before the accident, as determined by RSA 281:2 V (supp) "and the average weekly wages which he is able to earn thereafter." Section 25 (supp) supra. We cannot speculate as to what facts the evidence in future proceedings may develop, but if this issue is reached, we believe the language of the Law as interpreted in Latour v. Producers Dairy, 102 N.H. 5; Kacavisti v. Sprague Electric Co., 102 N.H. 266, and cases cited therein, will furnish a sufficient guide for the Trial Court.
The order is
New trial.
All concurred.