120 Me. 81 | Me. | 1921
In August, 1918, Herbert Gray fractured his ankle in an accident- arising out of and in the course of his employment by the St. Croix Paper Co.
By agreement duly approved the defendants paid him compensation at the rate of ten dollars per week for eighty-one weeks. On May 3rd, 1920 Mr. Gray died of tuberculosis alleged to have been caused by the fracture.
The chairman of the Industrial Accident- Commission found as a fact “that the death of Herbert Gray, husband of the petitioner, on May 3rd, 1920 was the direct result of the injury sustained by him August 28, 1918 while in the employ of the St. Croix Paper Company.”
It has again and again been decided and is conceded that this court has no authority to review the Industrial Accident Commission’s finding of fact in the absence of fraud and provided such findings are supported by any legal, evidence. Westman’s Case, 118 Maine, 133; Mailman’s Case, 118 Maine, 172.
But the defendants contend that there is no evidence supporting the finding of fact above quoted.
The only evidence on this issue is the testimony of Dr. W. H. Bunker of Calais, Mr. Gray’s attending physician. Dr. Bunker testified that in his opinion the tuberculosis causing death in 1920 was the result of the accident in 1918.
The doctor is a general practitioner and not a specialist. But he has been engaged in practice for eleven years. He treated Mr. Gray for about a year and a half. He made some examination of the injured ankle having an X-ray photograph taken to facilitate the examination. He treated the fracture and his treatment is not criticised. According to his testimony he discovered that the bones were not uniting, made an incision, found the ankle joint destroyed and amputated the leg. In Jan. 1919 the symptoms of the patient suggested to the mind of the doctor a tubercular condition of the bones. Considerably later he had an analysis of the sputum made at the state laboratory.
The doctor was subjected to a searching cross examination. His testimony was shaken, but not destroyed, weakened but not annihilated, torpedoed but not sunk. We cannot say that there was no testimony supporting the chairman’s finding.
The defendant’s second reason of appeal is that the commissioner, in awarding compensation for an injury by an industrial accident which occurred in 1918, applied the provisions of Chapter 238 of the Public Laws of 1919. The appeal so far as it is based on this ground must be sustained. Gauthier’s Case, supra.
The petitioner is entitled to ten dollars per week, the maximum weekly compensation allowable under the law in force in 1918 when the accident occurred. She is so entitled for three hundred weeks, less eighty-one weeks for which compensation was paid during Mr. Gray’s life.
The decree must be modified so as to require payment of ten dollars per week instead of the amount allowed by the chairman, such payments to begin as of May 3, 1920 and continue for two hundred and nineteen weeks.
Appeal sustained.
Decree modified as stated in opinion.