Bottiglieri v. Caldarone, s. 83-180-A
| Decision Date | 24 January 1985 |
| Docket Number | Nos. 83-180-A,s. 83-180-A |
| Citation | 486 A.2d 1085 |
| Parties | Salvatore BOTTIGLIERI v. Romeo CALDARONE et al. LeRoy COX v. Romeo CALDARONE et al. ppeal, 83-220-Appeal. |
| Court | Rhode Island Supreme Court |
These two separate cases have been consolidated on appeal. In each case the employee brought a petition seeking benefits from the Second Injury Indemnity Fund pursuant to G.L.1956 (1979 Reenactment) § 28-37-1. 1 The trial commissioner denied and dismissed the petitions. The Workers' Compensation Commission (hereinafter the commission) affirmed, holding that since neither employee was totally incapacitated, both fell outside the scope of the Second Injury Fund statute. The employees appeal from the decrees of the commission.
On January 14, 1974, employee Leroy Cox injured his back while working for employer Kaiser. Employee's physician, Dr. Joseph Izzi, diagnosed his condition as low-back syndrome, for which Dr. Izzi prescribed traction, exercises and medication. The employee complains of persistent back pain and evidenced limited pain-free range of motion. Doctor Izzi states that employee is totally disabled with regard to his former employment, and should avoid bending, sitting, standing and lifting. Under cross-examination Dr. Izzi acknowledged that employee's condition has remained virtually unchanged and that he could return to selected light work without further deterioration of his condition.
In fact, employee traveled to Arizona at the suggestion of his physician in 1979 and found employment there with a relative working at flea markets. The employee entered into a consent decree in October 1979 that reduced his work-incapacity status from total incapacity to partial incapacity. At the hearing before the commission, the employee presented as an expert witness Maurice Chefitz, Ph.D., an authority on vocational and rehabilitative counseling. Doctor Chefitz testified, over the objections of employer, that due to the physical limitations placed upon employee that he should avoid sitting, standing, lifting and bending, no work exists for him in the marketplace and, therefore, for the purposes of this act he is totally disabled.
At the close of testimony the commissioner summarized the medical evidence, stating that employee could do some light work provided that it did not require heavy lifting or pushing. He rejected application of the odd-lot doctrine 2 to Second Injury Fund cases and concluded that since employee was not totally incapacitated as required by statute, he was not entitled to Second Injury Fund benefits.
The employee, Salvatore Bottiglieri, suffered an injury that resulted, initially, in total incapacity. The preliminary agreement entered into described employee's injury as "hematoma of the right groin and cellulitis of the right ankle." In 1980 and 1981 employee was examined by his own physician, Dr. L.A. Corvese, who observed that petitioner was experiencing only partial disability arising from his knee injury and that he was capable of ordinary, nonhazardous work at ground level. The employee then had vocational rehabilitation expert Chefitz testify that a person of employee's age, education, language facility and work skills was functionally unemployable; that is, no work is available for this man.
The commissioner summarized the medical evidence and found that employee was only partially incapacitated at the time he had exhausted his statutory benefits. Since partial incapacity failed to satisfy the statutory requirements of the Second Injury Fund, the petition was dismissed.
The sole issue before us is whether partially disabled employees are entitled to benefits from the Second Injury Fund.
The employees in both cases below have introduced testimony by a vocational and rehabilitative expert to buttress their contentions that they are functionally...
To continue reading
Request your trial
-
Kelly v. Marcantonio
...and language is both clear and unambiguous. We must accord that statutory language its plain and ordinary meaning. Bottiglieri v. Caldarone, 486 A.2d 1085, 1087 (R.I.1985). Once having done that, our "work of judicial interpretation is at an end." DeAngelis v. Rhode Island Ethics Commission......
-
Hicks v. Vennerbeck & Clase Co.
...deciding whether the evidence preponderates in favor of or against the findings embodied in the decree. E.g., Bottiglieri v. Caldarone, 486 A.2d 1085, 1087 (R.I.1985); Moretti v. Turin, Inc., 112 R.I. 220, 223, 308 A.2d 500, 502 (1973); Wardwell Braiding Machine Co. v. Imondi, 107 R.I. 19, ......
-
Thomas v. RI INSURERS'INSOLVENCY FUND
...has exceeded his statutory maximum of weekly benefits. In support of this argument, the Insolvency Fund relies on Bottiglieri v. Caldarone, 486 A.2d 1085 (R.I.1985), where we restated our rule that "a claimant must be totally incapacitated as a direct result of a compensable injury and have......
-
Diocese of Providence v. Vaz
...Section 28-35-28(b); Grimes Box Co. v. Miguel, 509 A.2d 1002 (R.I.1986). The Appellate Division's reliance upon Bottiglieri v. Caldarone, 486 A.2d 1085, 1087 (R.I.1985) and Moretti v. Turin, Inc., 112 R.I. 220, 223, 308 A.2d 500, 502 (1973), is misplaced. In 1986 this Court stated in "Final......