DeNardo v. Fairmount Foundries Cranston, Inc.

• Decision Date: 12 April 1979
• Docket Number: No. 77-110-A,77-110-A
• Citation: 121 R.I. 440,399 A.2d 1229
• Parties: Michael DeNARDO v. FAIRMOUNT FOUNDRIES CRANSTON, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 1229

399 A.2d 1229

121 R.I. 440

Michael DeNARDO v. FAIRMOUNT FOUNDRIES CRANSTON, INC.

No. 77-110-Appeal.

Supreme Court of Rhode Island.

April 12, 1979.

[121 R.I. 454] Abedon, Stanzler, Biener, Skolnik & Lipsey, Richard A. Skolnik, Lynette Labinger, Providence, for petitioner.

Robert K. Argentieri, Providence, for respondent.

OPINION

WEISBERGER, Justice.

This is an employee's original petition brought under the Workers' Compensation Act whereby the employee sought benefits for loss of use and disfigurement of his upper right arm. The trial commissioner found that the employee had failed to prove by a fair preponderance of the credible evidence that he sustained any injury to his right arm arising out of and in the course of his employment. The employee appealed to the full commission which found that the employee was acting outside the scope of his employment when he sustained the injury. The case is before us on the employee's appeal from the decree of the full commission affirming the earlier decree rendered pursuant to the decision of the trial commissioner.

The facts are undisputed. The employee was engaged as a so-called "hot-box operator." There was an area on the premises of the employer known as the cafeteria in which several food and beverage vending machines were located for the use of the employees. A metal grate-type fence was installed in front of the machines to prevent thievery. The fence was not installed by the employer.

A caterer visited the employer's premises at 9 a. m. and at 12 noon each day to sell sandwiches and pastry to the employees on their break. At these times the fence was unlocked and opened allowing the employees to gain access to the various vending machines. The employee stated that at other times during the day when the fence was closed, the employees could use the vending machines by placing their arms through the opening in the grate. It was customary for the employees to use the machines in this manner. The employer was aware of this practice and did not prohibit the employees from making these purchases during the period when the grate was closed and locked.

On August 21, 1975, at approximately 8 a. m. at a time when the fence was closed, the employee approached the coffee machine and inserted two coins into the machine by reaching through the grate with his right hand. The employee stated at the hearing before the trial commissioner that the opening in the grate was just large enough to permit an arm to reach the machines, insert the coins and remove the coffee. One of the coins became wedged or stuck in the machine which prevented the machine from functioning properly. The employee testified he gave the machine a "whack" with his right hand and as he did, he struck the upper part of his right arm on the grate. Shortly thereafter, the arm began to swell. The employee showed his arm to his supervisor who sent the employee to the plant nurse. A large lump developed in the area of the biceps of the employee's right arm, but he was able to continue working and did not lose any time from work as a result of this incident.

The employee stated that the only restriction placed on the use of the machines was that employees were not allowed to remain in the vending machine area at times other than the permitted breaks. Once they had made their purchase, they were required to return to their work area.

An orthopedic surgeon testified that he examined the employee on November 11, 1976. The examination revealed the employee had a rupture of the biceps muscle of the right arm. It was the doctor's opinion that the employee had a permanent ten percent loss of use of the right upper extremity.

The full commission determined that the employee's injury was sustained during the course of employment but did not arise from employment because the employee's action in exerting force on the vending machine was unusual or remote from the customary practice. Consequently, the full commission determined that the employee was injured when acting outside the scope of employment, and denied benefits.

In reviewing this case we note that we have historically applied two distinct standards in reviewing decrees of the Workers' Compensation Commission awarding or denying benefits on the ground that the employee's injury did or did not arise out of and in the course of employment. In certain instances we have regarded the determination that an injury did or did not arise out of and in the course of employment as factual in nature and applied a limited review to determine whether the commission's conclusion was supported by competent legal evidence. See, e. g., Beauchesne v. David London & Co., R.I., 375 A.2d 920 (1977); Knowlton v. Porter Trucking Co., 117 R.I. 28, 362 A.2d 131 (1976); San Antonio v. Al Izzi's Motor Sales, Inc., 110 R.I. 54, 290 A.2d 59 (1972); Chase v. General Electric Co., 83 R.I. 269, 115 A.2d 683 (1955); Remington v. Louttit Laundry Co., 77 R.I. 185, 74 A.2d 442 (1950); Johnson v. Rhode Island Contracting Co., 73 R.I. 238, 54 A.2d 412 (1947); Bride v. Cathedral Art Metal Co., 66 R.I. 331, 19 A.2d 317 (1941).

In other instances we have stated, as both parties contend in the present case, that the legal significance of undisputed facts is to be determined by this court. See, e. g., Lussier v. American Textile Co., 110 R.I. 299, 292 A.2d 226 (1972); Bergeron v. Kilnic Co., 108 R.I. 313, 274 A.2d 753 (1971); Corry v. Commissioned Officers' Mess, 78 R.I. 264, 81 A.2d 689 (1951); Lupoli v. Atlantic Tubing Co., 43 R.I. 299, 111 A. 766 (1920). In some of these cases we have accordingly substituted our judgment on the issue of whether an injury arose out of or in the course of employment. See, e. g., Bergeron; Corry, both Supra.

Clearly, the standard in reviewing the commission's conclusion on whether an injury arose out of or in the course of employment should not depend on the existence of disputed facts. See Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Young v. Henry M. Young, Inc., 56 A.D.2d 941, 392 N.Y.S.2d 502 (1977); Cf. Clarke v. Rhode Island Electric Lighting Co., 16 R.I. 463, 17 A. 59 (1889) (negligence case); Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Calif.L.Rev. 1867, 1880 (1966) (negligence). Fact-finding is clearly within the commission's province and we review only to determine if there is competent legal evidence supporting those findings. Veloso v. Lebanon Knitting Mills, Inc., 111 R.I. 41, 298 A.2d 804 (1973). Once the commission has found the facts it must conclude whether the employee's injury arose out of and in the course of employment, and our review of that conclusion rests upon the facts as found by the commission.

We are empowered under the Workers' Compensation statute to review a decree of the commission on the ground that it was procured by fraud or that the commission erred on questions of law or equity. G.L.1956 (1968 Reenactment) § 28-35-30. Thus, our ability to review a decree of the commission denying benefits on the ground that the employee's injury did not arise out of the employment rests, at least analytically, on a characterization of that determination as a question of law or fact. Many eminent authorities have wrestled with the distinction between law and fact in the realm of administrative law with no discernible product. Indeed, John Dickinson noted in his frequently cited Administrative Justice and the Supremacy of Law, 55 (1927) that:

"In truth, the distinction between 'questions of law' and 'questions of fact' really gives little help in determining how far the courts will review; and for the good reason that there is no fixed distinction. They are not two mutually exclusive Kinds of questions, based upon a difference of subject-matter. Matters of law grow downward into roots of fact, and matters of fact reach upward, without a break, into matters of law. The knife of policy alone effects an artificial cleavage at the point where the court chooses to draw the line between public interest and private right. It would seem that when the courts are unwilling to review, they are tempted to explain by the easy device of calling the question one of 'fact'; and when otherwise disposed, they say that it is a question of 'law.' "

See also Landis, The Administrative Process, 145 (1938); II Cooper, State Administrative Law, 665-66 (1965). In fact, the futility of drawing a distinction is viewed as a functional failure by one authority who has stated that:

"No two terms of legal science have rendered better service than 'law' and 'fact.' They are basic assumptions; irreducible minimums and the most comprehensive maximums at the same instant. They readily accommodate themselves to any meaning we desire to give them. In them and their kind a science of law finds its strength and durability. They are the creations of centuries. What judge has not found refuge in them? The man who could succeed in defining them would be a public enemy. They may torture the souls of language mechanicians who insist that all words and phrases must have a fixed content, but they and their flexibility are essential to the science which has to do with the control of men through the power to pass judgment on their conduct."

Green, Judge and Jury, 270-71 (1930). Professor Davis has concluded that in the field of administrative law the Supreme Court consciously abstains from discussion of the law-fact distinction to maintain discretion in selecting the appropriate standard of review either the rational basis standard or the substitution of judgment standard. ¹ 4 Davis, Administrative Law, §§ 30.08; 30.14 (1958 & Supp.1970, 1976); See Judge Friendly's discussion in Pittston Stevedoring Corp. v. Dellaventura Corp., 544 F.2d 35 (2d Cir. 1976), Aff'd sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 97 S.Ct. 2348, 53 L.Ed.2d 320 (1977).

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