Beaupre v. Dynachem Corp., 73-116-A

• Decision Date: 13 August 1974
• Docket Number: No. 73-116-A,73-116-A
• Citation: 324 A.2d 621,113 R.I. 612
• Parties: Richard E. BEAUPRE v. DYNACHEM CORPORATION. ppeal.
• Court: Rhode Island Supreme Court

Page 621

324 A.2d 621

113 R.I. 612

Richard E. BEAUPRE v. DYNACHEM CORPORATION.

No. 73-116-Appeal.

Supreme Court of Rhode Island.

Aug. 13, 1974.

[113 R.I. 618] Manning, Santaniello & Pari, v. James Santaniello, Providence, for petitioner.

Worrell & Hodge, Lee A. Worrell, Providence, for respondet.

OPINION

ROBERTS, Chief Justice.

This is an employee's appeal from a decree of the Workmen's Compensation Commission affirming the trial commissioner's denial of an original petition brought pursuant to G.L.1956 (1968 Reenactment) § 28-33-19(l), wherein the employee sought specific compensation for a total loss of hearing in his left ear.

The record discloses that pettiioner was in the employ of respondent, Dynachem Corporation, on the morning of June 7, 1971, and was working in a small analytical quality control laboratory which Dynachem Corporation rented from Products Development Laboratories, Inc. The petitioner testified that a chemist in the employ of Products Development Laboratories, Inc. was running a chemical reaction outside of petitioner's laboratory and the fumes from the chemicals used in this reaction experiment were carried into petitioner's laboratory by the air conditioner. The chemicals in question were identified by petitioner as being ethyl acrylate and vinyl acetate. The petitioner testified that 15 to 30 minutes had passed before he or his coworker became aware of the fumes, and he estimated that he had been exposed to the fumes for a total of one hour.

The petitioner's testimony further reveals that the fumes in question affected his coworker in such a way that she left the lab and vomited, whereas his only effect was that he felt 'drowsy' at lunch as if he were 'drunk.' However, the next morning petitioner felt a 'stuffiness' in his left ear, and later on in the day, while talking to his wife on the telephone, he realized that he couldn't hear as well with his left ear as he could with his right ear. The petitioner testified that on the following day he had no hearing at all in his left ear. The petitioner then consulted Dr. Kershaw, a general practitioner, who prescribed antihistamines for the 'stuffiness' he was experiencing in his ear. The antihistamines did not improve petitioner's ear condition over the weekend, and as a result he consulted Dr. Charles L. Hill, an ear specialist, on June 14, 1971. Doctor Hill testified before the trial commissioner that '(a)s of June 14, 1971 he (petitioner) has no useful hearing in the left ear.' The doctor was then asked if he had an opinion based on reasonable medical certainty as to a causal connection between petitioner's inhalation of the ethyl acrylate fumes on June 7 and the loss of hearing that petitioner complained of on June 8. Doctor Hill replied: 'I feel that the exposure to the gas precipitated the hearing loss that Mr. Beaupre exhibits.' Subsequently, petitioner consulted two other ear specialists and was examined at the Massachusetts General Hospital.

The petition was heard by a trial commissioner, who rendered a decision on December 6, 1972, and a decree denying the petition for specific compensation was entered on December 12, 1972. In his findings of fact, the commissioner stated that petitioner had failed to prove that he became totally deaf in his left ear due to an injury, condition, or disease which arose out of and in the course of his employment. The commissioner also found that petitioner had failed to prove that his hearing loss was due to 'external trauma' connected with his employment as is required by § 28-33-19(l).

The petitioner appealed the commissioner's denial of his petition to the full commission on December 12, and on April 5, 1973, the full commission entered its decree affirming the decree of the trial commissioner. In its decision the full commission confined itself to the issue of whether petitioner sustained his burden in proving a causal connection between the inhalation of the ethyl acrylate fumes and his hearing loss. We have said in the past that '(i)n compensation cases we limit our review to determining whether error inheres in the decree of the full commission. (citation omitted) That limitation precludes us from a resolution of the issues not decided by the commission.' Moniz v. F. D. McGinn Inc., 102 R.I. 394, 397, 230 A.2d 837, 839 (1967). In the instant case the trial commissioner foundt hat petitioner had not shown that hsi loss of hearing was due to 'external trauma' as required by § 28-33-19(l). However, the full commission specifically found that no decision had to be made on the 'external trauma' question, and, therefore, it is not before us for review. See Builders Iron Works, Inc. v. Murphy, 104 R.I. 637, 247 A.2d 839 (1968); Balcom v. Providence Sheraton Corp., 98 R.I. 357, 201 A.2d 913 (1964).

In his appeal to the full commission, petitioner claimed that the decree of the trial commissioner was against the law because the evidence presented on his behalf was unimpeached, uncontradicted, and supported his contentions. We have set forth our position concerning uncontradicted and unimpeached testimony several times. 'This court has long accepted the view both in civil actions (see Gorman v. Hand Brewing Co., 28 R.I. 180, 66 A. 209 (1907)) and cases arising under the workmen's compensation act that the positive testimony of a witness when uncontradicted and unimpeached by other positive testimony or by circumstantial evidence, whether extrinsic or intrinsic, cannot be...