Bernier v. Narragansett Electric Co., s. 1289, 1307.

• Decision Date: 23 July 1936
• Docket Number: Nos. 1289, 1307.,s. 1289, 1307.
• Citation: 186 A. 479
• Parties: BERNIER v. NARRAGANSETT ELECTRIC CO.
• Court: Rhode Island Supreme Court

186 A. 479

BERNIER

v. NARRAGANSETT ELECTRIC CO.

Nos. 1289, 1307.

Supreme Court of Rhode Island.

July 23, 1936.

Appeal from Superior Court, Providence and Bristol Counties; G. Frederick Frost, and Charles A. Walsh, Judges.

Proceeding under the Workmen's Compensation Act by Omer Bernier, employee, against the Narragansett Electric Company, employer. From an adverse decree, employer appeals.

Appeal dismissed, decree affirmed, and cause remanded, with direction.

Clifford Whipple and Frank J. McGee, both of Providence, for appellant Narragansett Co.

Roger L. McCarthy and M. Louis Abedon, both of Providence, for appellee Bernier.

BAKER, Justice.

This petition (No. 1289), filed under the Workmen's Compensation Act (Gen.Laws 1923, c. 92, art. 1 et seq, § 1 et seq, as amended), is before us on the respondent's appeal from a decree entered in the superior court awarding the petitioner, a lineman, weekly compensation from October 14, 1933, for an indefinite period, by reason of partial incapacity caused by an injury to his back suffered March 31, 1932, while in the respondent's employ; the accident arising out of and in the course of such employment.

The petition was filed with the commissioner of labor, March 13, 1934, within two years of the date of the injury, under General Laws 1923, c. 92, art. 3, § 17, and prays for compensation from and after October 14, 1933, for partial incapacity only. The petitioner had filed a previous petition relating to the same injury, and asking for compensation to cover total incapacity. That petition eventually came before this court. Bernier v. Narragansett Electric Co, 54 R.I. 294, 173 A. 81. It was there held that the petitioner was entitled to a weekly payment from the respondent, as compensation for partial disability for the period, from December 1, 1932, to October 14, 1933, and a decree was entered to that effect. Compensation was stopped on the lastmentioned date because the petitioner was then employed, and apparently it was assumed that he had entirely recovered; but no finding was made to that effect. It appears, however, that he worked in that particular position only a short time after that date, and was then discharged; no reason for such action being given by the employer. Thereafter, he was employed at intervals on different government relief projects, doing chiefly light work. In the meantime the petition we are now considering was filed.

The respondent contends that the decision of this court under the previous petition is res adjudicata of the whole controversy between the parties arising from the injury in question, and that the present petition is improperly brought and invalid. We do not agree with this contention. Undoubtedly, the determination of the first petition adjudicated between the parties all matters raised by such petition from the time of the injury up to October 14, 1933, the date up to which compensation was allowed by the decree entered in that case. But we do not find that any determination was made for the period following that date, and, if the petitioner still believed himself totally or partially incapacitated thereafter by reason of the injury, we are of the opinion that he would be entitled to file a second petition to cover the period following the date up to which compensation had been awarded, where, as in the present cause, he was able so to do within two years from the time of the injury. His position would be analogous to that of an employee who, having failed to reach an agreement with his employer relating to incapacity to work on and after a certain fixed date, is asking for compensation starting from such date. Procedure of a like nature was approved by the court and followed in Lopes v. B. B. & R. Knight, Inc., 50 R. I. 16, 144 A. 439. Under such circumstances the petitioner is not limited to the filing of a petition for review. It is well settled that the Workmen's Compensation Act is a remedial statute, and is to be liberally construed and applied in order to carry out its purpose.

The petition now before us is not a petition for review, and is not governed by the sections of the act relating to that type of petition. It is not so framed, and under it the petitioner is not seeking to have reviewed any matters determined by this court under the previous petition, or included between the dates specifically referred to in the decree entered under that petition. Further, the fact that this court in Bernier v. Narragansett Electric Co, supra, found from the evidence only partial incapacity in the petitioner would not prevent his filing the present petition for a similar incapacity, because the allowance for compensation in the decree entered in that case was specifically limited to the period between December 1, 1932, and October 14, 1933, whereas the relief sought under the present petition is to start on such lastmentioned date. In our judgment, therefore, the petition in the cause at bar is properly brought, and the questions raised therein are not res adjudicata between the parties hereto.

The justice of the superior court, who saw and heard the witnesses, decided the issue of partial incapacity in favor of the petitioner, and this finding was embodied in the decree entered therein and appealed from. The Workmen's Compensation Act provides in Gen.Laws 1923, c. 92, art. 3, § 6, as amended by Laws 1928, c. 1207, that the findings of fact contained in the decree entered in the superior court shall be conclusive in the absence of...