Beacon Mill. Co. v. Whitford
| Decision Date | 28 February 1961 |
| Docket Number | No. 2863,2863 |
| Citation | 92 R.I. 253,168 A.2d 279 |
| Parties | BEACON MILLING COMPANY v. Edwin C. WHITFORD. Eq. |
| Court | Rhode Island Supreme Court |
Higgins & Cavanagh, Joseph V. Cavanagh, Harold E. Adams, Jr., Providence, for petitioner.
Weintraub & McElhiney, Samuel W. Weintraub, Providence, Edward M. Botelle, Westerly, for respondent.
This is an employer's petition for a review of incapacity brought under G.L.1956, § 28-35-45. It is before us on an appeal from the decree of the full commission affirming a decree of the trial commissioner granting the employer's petition and ordering payment of compensation for partial incapacity but denying the employee's claim to total compensation as authorized in the second proviso of G.L.1956, § 28-33-18.
The relevant facts and the travel of the cause are undisputed. The employee sustained a compensable injury on April 2, 1958 and was awarded compensation for total incapacity in accordance with the terms of a preliminary agreement approved by the director of labor on April 17 of that year. Thereafter on April 24, 1959 the employer filed the instant petition for review which was heard by a single commissioner on May 29, 1959.
Upon the conclusion of the hearing the trial commissioner entered a decree on June 12, 1959 finding that the employee was no longer totally but was now partially incapacitated; that the employer had not offered suitable employment, nor evidence that suitable work was available; and that the employee had made an unsuccessful bona fide attempt to find work that he was able to do. The decree ordered that the employer continue weekly payments for total disability; that the employee continue to make a bona fide attempt to obtain suitable work; and that the 'petition' be continued to July 29, 1959 for either party to present further evidence.
The parties refer to this decree as interlocutory and no appeal was taken therefrom to the full commission.
It appears that by agreement of the parties the hearing for July 29 was continued from time to time until February 3, 1960. The transcript for the hearing on that day discloses that the employer was no longer doing business in Rhode Island, had made no offer of suitable work to the employee, and offered no evidence as to where such suitable work might be obtained.
The employee was called by counsel for the employer and was questioned as to what efforts he had made to obtain light work. He was thereafter questioned by his own attorney on the same subject, as well as to his present condition and communications he may have had with the employer on the issue of the latter's ability to offer him work or assist him in obtaining work somewhere else. We do not deem it necessary to otherwise refer to his testimony.
The trial commissioner found that the employee continued to be partially incapacitated, that the employer had neither offered suitable work nor evidence as to where such work might be obtained, that the employee had not made a bona fide attempt to obtain such work elsewhere, and ordered the employer to pay to the employee maximum weekly compensation of not more than $22 for partial incapacity. These findings and orders were included by the trial commissioner in a decree entered February 12, 1960. From this decree the employee appealed to the full commission, which, after hearing thereon, entered a final decree on April 15, 1960, affirming the decree of the trial commissioner. Thereupon the employee prosecuted his appeal therefrom to this court.
The employee has assigned seven grounds of error in his reasons of appeal but they are all contained within a single issue; namely, that the commission erred in affirming the decree of the trial commissioner which, contrary to the provisions of G.L.1956, § 28-33-18, and decided cases, had shifted the burden of proof from the petitioner-employer to the respondent-employee on the latter's right to compensation for total incapacity in accordance with the second proviso of § 28-33-18. That proviso is as follows: '* * * provided,...
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Cavanagh v. Cavanagh
...below, jurisdictional defects are not waived by the failure of the parties to raise them timely. See Beacon Milling Co. v. Whitford, 92 R.I. 253, 258, 168 A.2d 279, 281 (1961). In this opinion, however, we consider only jurisdictional issues which may affect those actions taken before May 1......
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Dibiasio v. Zoning Bd. of Appeal for the Town of Johnston
...parties to raise them timely." Cavanagh v. Cavanagh, 118 R.I. 608, 615, 375 A.2d 911, 914 (1977); see also Beacon Milling Co. v. Whitford, 92 R.I. 253, 258, 168 A.2d 279, 281 (1961) ("it is well settled that [the Court] may raise jurisdictional questions sua sponte"). Our Supreme Court has ......
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Dibiasio v. Zoning Board of Appeal For Town of Johnston
... ... was supported by substantial evidence in the whole ... record." Mill Realty Assocs. v. Crowe, 841 A.2d ... 668, 672 (R.I. 2004) (internal quotation marks and ... Cavanagh , 118 R.I. 608, ... 615, 375 A.2d 911, 914 (1977); see also Beacon Milling ... Co. v. Whitford , 92 R.I. 253, 258, 168 A.2d 279, 281 ... (1961) ("it is ... ...
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Cranston Print Works Co. v. Picano
...the act. He relies on certain language in Moss Construction Co. v. Boiani, supra, and on the decision of this court in Beacon Milling Co. v. Whitford, R.I., 168 A.2d 279. The Moss Construction Co. case is not in point and requires no further discussion. The decree in the Beacon Milling Co. ......