Brown & Sharpe Mfg. Co. v. Lavoie, 2361

• Decision Date: 28 July 1955
• Docket Number: No. 2361,2361
• Citation: 116 A.2d 181,83 R.I. 335
• Court: Rhode Island Supreme Court
• Parties: BROWN & SHARPE MANUFACTURING COMPANY v. Thomas LAVOIE. Eq.

Page 181

116 A.2d 181

83 R.I. 335

BROWN & SHARPE MANUFACTURING COMPANY v. Thomas LAVOIE.

Eq. No. 2361.

Supreme Court of Rhode Island.

July 28, 1955.

Worrell & Hodge, Eldridge H. Henning, Jr., Providence, for petitioner.

Edward I. Friedman, Providence, for respondent.

CONDON, Justice.

This is an employer's petition to review a preliminary agreement. After a hearing before a single member of the workmen's compensation commission he found that the respondent was no longer incapacitated by the injuries set out in such agreement. A decree to that effect was thereafter entered and the respondent duly appealed therefrom to the full commission. In accordance with the provisions of public laws 1954, chapter 3297, article III, § 3(g), it reviewed the decree upon the record of the case, and thereafter entered a new decree affirming the decree of the commissioner. From such decree the respondent has appealed to this court.

In support of his appeal, respondent relies upon six specific reasons of appeal. Under the first five reasons he contends that the decree is without any basis in fact, is contrary to the medical evidence, and generally is against the law and the evidence and the weight thereof. Under his sixth reason he claims that the single commissioner erroneously admitted in evidence the report of an impartial medical examiner without giving respondent an opportunity to cross-examine the author of the report. He did not raise such question by a similar specific reason of appeal to the full commission.

The first five reasons of appeal raise only the following question: Does chapter 3297 authorize this court, on an appeal from a decree of the workmen's compensation commission, to weigh the evidence and decide for itself whether such decree is supported by a fair preponderance? A further question arises because of petitioner's objection to our considering respondent's sixth reason of appeal. The petitioner contends that since the issue raised by that reason was not specifically presented to the full commission for their determination it may not now be raised for the first time in this court.

It is not necessary to discuss the evidence at length to answer those questions. As we understand respondent he does not deny that on the record as it stands there is some legal evidence to support the decree. In any event from our examination of the transcript we are satisfied that there is such evidence. However, before answering the above questions we shall first relate certain evidence to show how they arose.

The respondent was injured on December 17, 1953. Under the preliminary agreement, which was entered into by the parties on December 29, 1953, petitioner paid respondent compensation for total incapacity until September 9, 1954. On the previous day, at the conclusion of the hearing on the petition for review before the single commissioner, he announced that he was convinced respondent was no longer totally incapacitated but was in doubt whether he was still partially incapacitated. To resolve that doubt he decided that respondent should be examined by an impartial medical examiner. In the meantime without objection from respondent he entered an interlocutory decree dated September 9, 1954. Such decree suspended further payments for total incapacity but provided for payments for partial incapacity and 'That this matter is continued for decision upon the receipt of the report of the impartial medical examiner to be appointed by the Commission.'

Doctor Ernest D. Thompson was appointed and he examined respondent on September 16, 1954. He duly filed his report to the commission and a copy thereof was sent to respondent's counsel. The respondent took no action with reference to such report. On October 11, 1954 the commissioner filed a written decision finding that respondent was no longer incapacitated, totally or partially, by the injuries described in the preliminary agreement. A final decree to that effect was entered on October 14, 1954

The respondent appealed therefrom to the full commission and in support thereof filed five reasons of appeal which are identical with the first five reasons of appeal he subsequently filed in support of his appeal to this court. He did not specifically object to Dr. Thompson's report as a part of the evidence. Consequently such report was included in the record of the case upon which the full commission reviewed the decree. On that record it approved the single commissioner's decision and entered a new decree expressly affirming his decree. It is this decree of the full commission based on such record that respondent's appeal brings here for review.

In these circumstances no objections to any evidence in that record can be heard by us on such appeal. If the action of the single commissioner in admitting Dr. Thompson's report in evidence was erroneous, and respondent desired to exclude it from consideration, he should have filed a specific reason of appeal to that effect so that the full commission could pass upon his objection. Having failed to file such reason of appeal, respondent is precluded from raising that question here. On an appeal from the decree of a single commissioner as affirmed by the full commission we will review only those matters which were brought by specific reasons of appeal to the full commission. The respondent's sixth reason of appeal, therefore, will not be considered.

We shall now consider his first five reasons of appeal. Under his first reason he makes two contentions. He first argues that the decree is against the law because of the admission of Dr. Thompson's report in evidence. This is the same contention that was made under the sixth reason of appeal. Such contention cannot properly be made under a general reason of appeal that the decree is against the law. The alleged error occurred in the proceedings before the single commissioner. Under the former statute such error could be reviewed on appeal only by a reason of appeal stating specifically the matter determined adversely to the appellant. Campisani v. Sun Dial Optical Co., 80 R.I. 307, 96 A.2d 582. And the same is true under the present statute. P.L.1954, chapter 3297, art. III, §§ 3(g), 6(b).

The respondent's second contention is that the decree is void because it does not correspond with the copy which was served upon him before the decree was entered. It is stated in such copy: 'The findings of fact and the orders contained in a Decree of this Commission entered on August 30, 1954 be, and they hereby are, affirmed.' The decree of record reads: 'October 14, 1954.' The respondent asserts that such later date is typed over an erasure; that he has no knowledge of the time when it was done; that he never received notice thereof; and that he has never received a copy of the decree as thus corrected. There is no merit in this contention even though such assertions be true. On this appeal he may not challenge the accuracy of the commission's record. In view of the judicial powers vested in the commission its records of adjudications in the exercise of its jurisdiction import verity. If in fact its record in a particular instance does not speak the truth it should be first challenged in direct proceedings before the commission.

The next four reasons of appeal relate to the probative force of the evidence and...