Capobianco v. United Wire & Supply Corp.

• Decision Date: 29 June 1951
• Docket Number: No. 2055,2055
• Citation: Capobianco v. United Wire & Supply Corp., 82 A.2d 170, 78 R.I. 309 (R.I. 1951)
• Court: Rhode Island Supreme Court
• Parties: CAPOBIANCO v. UNITED WIRE & SUPPLY CORP. Eq.

Page 170

82 A.2d 170

78 R.I. 309

CAPOBIANCO v. UNITED WIRE & SUPPLY CORP.

Eq. No. 2055.

Supreme Court of Rhode Island.

June 29, 1951.

Goldberg & Goldberg, Philip B. Goldberg, Leo M. Goldberg, and Joseph Palmieri, all of Providence, for petitioner.

Worrell & Hodge and Lee A. Worrell, all of Providence, for respondent.

FLYNN, Chief Justice.

This petition was brought by an employee under the Workmen's Compensation Act, General Laws 1938, chapter 300, as amended by Public Laws 1949, chap. 2272, to amend a previously approved preliminary agreement for compensation on the ground that a certain injury was omitted therefrom by accident, mistake or unforeseen cause. The case is here upon the employee's appeal from a decree of the superior court denying and dismissing the petition.

The petitioner employee on June 16, 1945 was incapacitated by an accidental injury arising out of and in the course of her employment with the respondent. Thereafter a preliminary agreement describing the injury as 'lumbo-sacral strain' and requiring the employer to pay compensation of $20 weekly during the employee's total incapacity under the act was approved by the director of labor. Such payments of compensation were duly made until November 8, 1945 when the employee returned to her work. A settlement receipt was executed on November 19, 1945 and was duly approved by the director of labor on December 21, 1945.

Some years later, in April 1949, the petitioner attempted to claim an appeal from the preliminary agreement itself, rather than from any decision upon a proper petition, on the ground that the agreement was obtained by fraud, coercion or mutual mistake of fact. In that case this court sustained the dismissal of the appeal for reasons therein stated but ordered the decree to be amended so that petitioner 'will not be prejudiced thereby in the event that she has recourse hereafter to the procedure which we have prescribed above as appropriate.' Capobianco v. United Wire & Supply Corp., R.I., 77 A.2d 534, 538.

Thereafter, instead of bringing a new petition based upon allegations of fraud or coercion to be heard in the first instance by the director of labor as indicated in that opinion, the employee filed the instant petition under P.L. 1949, chap. 2272, which was enacted in amendment of G.L. 1938, chap. 300, article III, § 1, and became effective May 5, 1949. At a hearing thereon in the superior court there was evidence tending to show that petitioner had sustained a traumatic infected pilonidal sinus, which condition was causally related to the accident and injury. There was also evidence, however, that the employer at the time of the agreement considered that such injury had been healed; that in any event it was not incapacitating under the act; and that consequently respondent intentionally drew and entered into the preliminary agreement based only on the incapacitating injury therein described as 'lumbo-sacral strain.'

The trial justice found on the evidence that petitioner had 'sustained a pilonidal cyst or infection'; that there was a causal relation between such injury and the accident; that the omission thereof from the agreement was not due to accident, mistake or unforeseen cause, or failure correctly to diagnose the injury; and that the amendment of art. III, § 1, by chap. 2272 was not retroactive in operation and therefore that it applied only to a preliminary agreement which had been entered into and approved after May 5, 1949, the effective date of said chapter. On these grounds a decree was entered denying and dismissing the petition.

The petitioner contends substantially that chapter 2272 should be construed retrospectively to cover the instant agreement; that the statute is purely procedural in its effect and therefore can be retroactively applied without affecting any alleged constitutional rights of the respondent; and that if the parties under other provisions of the act may not waive an employee's injury, this chapter should not be construed to permit the employer on its own volition to leave out certain injuries that were causally connected with the accident and injury. In short petitioner argues that the trial justice erred not only in finding that the failure to include in the preliminary agreement the employee's infected pilonidal sinus was not due to accident, mistake or unforeseen cause, but also in ruling that chapter 2272 does not apply to a preliminary agreement entered into and approved under the act prior to May 5, 1949. The petitioner further contends that the trial justice also erred in refusing the request of her counsel to make available in the trial a certain report of respondent's foreman prepared in the usual course of his duties relative to accidents.

On this record the controlling question is whether chapter 2272, under which the petition is filed, was intended to be retroactive so as to apply to compensation agreements entered into and approved prior to May 5, 1949. In our judgment the trial justice was correct in holding that said chapter applies only to agreements under the act which are approved after the passage of that statute.

The pertinent part of chapter 2272 reads as follows:

'Section 1. If the employer and the employee reach an agreement in regard to compensation under this chapter, a memorandum of...