Cabral v. Converse Rubber Co.

• Decision Date: 29 May 1979
• Docket Number: No. 77-296-A,77-296-A
• Citation: Cabral v. Converse Rubber Co., 401 A.2d 1281, 121 R.I. 606 (R.I. 1979)
• Parties: Jose C. CABRAL v. CONVERSE RUBBER COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 1281

401 A.2d 1281

121 R.I. 606

Jose C. CABRAL v. CONVERSE RUBBER COMPANY.

No. 77-296-Appeal.

Supreme Court of Rhode Island.

May 29, 1979.

[121 R.I. 611] Lovett & Linder, Ltd., Raul L. Lovett, Providence, for petitioner.

Vincent J. Chisholm Law Offices, Vincent J. Chisholm, Howard L. Feldman, Providence, for respondent.

OPINION

DORIS, Judge.

This is an appeal by the employer, Converse Rubber Company (Converse), from a decree of the Workers' Compensation Commission affirming a decree of the trial commissioner adjudging Converse in contempt for failure to comply with the provisions of a supplemental agreement calling for the payment of partial compensation to the employee, Jose C. Cabral. We affirm.

On March 28, 1974, the employee suffered a crushing injury to the fingers of his left hand. He received compensation for total incapacity until he returned to work for regular wages and a settlement receipt was executed and filed. When Converse's plant shut down, however, he was placed on a second preliminary agreement calling for the payment of partial compensation. That agreement, executed on June 9, 1975, provided as follows:

"That partial compensation shall be paid at the rate of $ various per week based on an average weekly wage of $171.16. This compensation shall be payable to the said employee commencing May 27, 1975 for duration of incapacity or until otherwise terminated in accordance with the provisions of the Workmen's Compensation Act * * *."

The employee was paid the maximum partial compensation until the plant reopened on June 1, 1975. For several weeks after returning to work the employee earned wages at least equal to his pre-injury earnings, and accordingly no partial compensation was paid. Beginning with the week ending October 12, 1975, however, and continuing until June 20, 1976, there were several weeks when the employee did not receive maximum partial compensation, but instead was paid either no partial compensation or partial compensation based upon a formula established by Converse.

On January 29, 1976, the employee filed a petition to enforce the agreement. At the hearing conducted before the trial commissioner, Converse explained the formula it had employed: the number of hours worked in a week was multiplied by the employee's rate of pay at the time of the injury. If this computed figure was less than the amount actually paid the employee during the week in question, no partial compensation was paid. The trial commissioner found that this formula was clearly at variance with the statutory mandate contained in G.L.1956 (1968 Reenactment) § 28-33-18. Accordingly, he entered a decree adjudging Converse in contempt since the week ending October 12, 1975, for failure to comply with the still-binding provisions of the outstanding preliminary agreement. The trial commissioner ordered Converse to pay the employee partial compensation at the statutory rate with credit for the payments already made.

The full commission affirmed, noting that there was no indication in the record that the employee had executed a suspension agreement and receipt, nor had Converse taken any affirmative action seeking relief. The commission stressed that subsequent to the execution of the second preliminary agreement no determination had been rendered stating that the employee's incapacity had ended, and therefore Converse remained obligated to comply with the outstanding agreement.

On appeal before us, Converse places particular emphasis upon the contradicted fact that the employee's post-injury reduction in wages was caused by two factors unrelated to his original injury his entire work shift worked fewer hours and he was absent from work for an extended period because of a non-industrial accident. Converse asserts that an employee is not entitled to compensation for partial incapacity if his reduction in earnings is solely attributable to such factors. Converse also notes that on several occasions the employee's post-injury earnings exceeded his pre-injury earnings, indicating that the employee no longer suffered a diminution in earning capacity.

Section 28-33-18 prescribes the exclusive formula to be utilized when computing the weekly compensation for partial incapacity. The statute in effect at the time of the injury states that an employer must pay a partially incapacitated employee an amount equal to 60 percent of the difference between his average weekly wages, earnings, or salary before the injury and the weekly wages, earnings, or salary that he earned thereafter, but no more than the maximum rate for total incapacity. ¹ The statutory language in § 28-33-18 is plain and unambiguous, expressing a definite and sensible meaning. Thus, the statute must be applied literally. See Podborski v. Haskell Manufacturing Co., 109 R.I. 1, 8-9, 279 A.2d 914, 918 (1971). By adopting its own unique method of calculating compensation benefits, Converse in effect seeks to establish unilaterally the employee's earning capacity. As we indicated in Podborski, when the Legislature amended the Workers' Compensation Act in 1969, it removed from the commission the power to establish an earning capacity for a partially incapacitated worker. See id. at 3-4, 279 A.2d at 915-16. Clearly, an employer also lacks such power.

Converse's argument that the employee is no longer entitled to benefits because his reduction in earning capacity was occasioned solely by factors unrelated to his compensable injury lacks merit for several reasons. First, it ignores the legislative intent embodied in our workers' compensation system. It is fundamental that the right to compensation is predicated upon a reduction in earning capacity caused by an injury, rather than the injury itself. See, e. g., Accioli v. Josal Construction Co., 112 R.I. 215, 218, 308 A.2d 498, 499 (1973); D'Iorio v. United States Rubber Co., 88 R.I. 369, 373, 148 A.2d 683, 685 (1959). Our opinion in Nardolillo v. Big G...