Costa v. Cars, Inc.

• Decision Date: 26 April 1966
• Docket Number: No. 3240,3240
• Citation: 219 A.2d 122,100 R.I. 682
• Parties: David E. COSTA v. CARS, INC. Eq.
• Court: Rhode Island Supreme Court

Page 122

219 A.2d 122

100 R.I. 682

David E. COSTA v. CARS, INC.

Eq. No. 3240.

Supreme Court of Rhode Island.

April 26, 1966.

Charles H. Anderson, Providence, for petitioner.

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

PAOLINO, Justice.

This is an employee's petition to review a decree entered in an original petition for benefits by the workmen's compensation commission and affirmed by this court in Costa v. Cars, Inc., 96 R.I. 396, 192 A.2d 1. The case is now before us on the appeals of both parties from a decree of the full commission affirming a decree entered by the trial commissioner.

The petitioner filed his original petition for benefits under the act on December 2, 1959; the testimony therein was concluded on September 5, 1961, but the trial commissioner did not enter his decision until November 3, 1962, nor his decree based thereon until November 5, 1962; an appeal was taken by respondent and on January 29, 1963 the full commission entered a decree affirming the decree of the trial commissioner; on June 20, 1963 we filed our decision in Costa, supra, denying and dismissing respondent's appeal and affirming the decree entered by the commission in that proceeding.

The decree entered on November 5, 1962 contained specific findings of fact describing the nature and extent of petitioner's injuries and setting forth three periods of incapacity for work resulting therefrom, the last incapacity ending on June 16, 1961. ¹

On August 27, 1963 petitioner filed the instant petition to review the decree entered on November 5, 1962. The hearings on this petition were held at various times during the period between December 3, 1963 and April 24, 1964, the record thereof consisting of testimonital evidence and medical exhibits. Thereafter the trial commissioner entered a written decision and on July 2, 1964 entered a decree based thereon which contained the following pertinent findings of fact:

'1. That the petitioner has failed to prove by a fair preponderance of the reasonable evidence that any incapacity for work either total or partial that he suffered during April 27, 1962, to May 29, 1962, January 5, 1963 to January 12, 1963, and February 10, 1963 to March 1, 1963, had any connection with or flowed from the original injury for which the respondent is connected.

'2. That on October 1, 1963, however, the petitioner had a return of incapacity solely as a result of the original injury set forth and described in the decree which is presently being reviewed.

'3. That said incapacity was total from October 2, 1963 to October 22, 1963, the date that he was at the Miriam Hospital but that since October 22, 1963 the petitioner has only been partially incapacitated for work.

Both parties appealed to the full commission. After considering the appeals the commission entered a decree dated February 3, 1965 affirming the decree of the trial commissioner. The case is before us, as already stated, on the appeals of both parties from the commission's decree.

The petitioner contends in substance that there is no evidence to support the negative findings of fact in paragraph 1 of the trial commissioner's decree and that the decree is therefore against the law. The respondent attacks the legality of the findings in paragraphs 2 and 3 of such decree and, in addition, challenges the authority of the commission to inquire prior to November 5, 1962, the date of the entry of the decree being reviewed.

We shall first consider respondent's contention that the commission lacked authority to inquire as to the alleged incapacity during the period between April 27, 1962 and May 29, 1962, a period subsequent to September 5, 1961, the date of the conclusion of the hearing in the original petition but prior to entry of the decree therein, which for some unexplained reason did not occur until November 5, 1962. It relies on Ottone v. Franklin Process Co., 76 R.I. 431, 71 A.2d 780, Trudeau v. United States Rubber Co., 92 R.I. 328, 168 A.2d 460, and Balcom v. Providence Sheraton Corp., R.I., 201 A.2d 913.

The review of agreements and decrees is governed by G.L.1956, § 28-35-45, which, so far as pertinent, provides that 'At any time * * * after the date of the entry of any decree concerning compensation, and if compensation has ceased thereunder, within ten (10) years thereafter, any * * * decree may be from time to time reviewed by the workmen's compensation commission * * * upon the ground that the incapacity of the injured employee has diminished, ended, increased or returned * * *.'

In Ottone, supra, 76 R.I. at page 436, 71 A.2d at page 783, the court held:

'By establishing the date of the decree on the last petition for review as the starting point for any later inquiry as to whether the employee's incapacity has ended, diminished or increased we avoid the possibility of repeated reviews of facts once passed upon and decided. Such a possibility necessarily exists if in circumstances like the instant cases an unsuccessful petitioner may file another petition for review of the original agreement, order or decree fixing compensation.'

Ottone was dicided under a prior statute, but it was cited as controlling in Trudeau which was decided under the present act. In Trudeau, 92 R.I. at page 331, 168 A.2d at page 462, the court stated:

'The status of the parties is now established by the existing preliminary agreement under which petitioner is receiving total disability compensation. Any petition for review must necessarily be addressed to that agreement.'

Since as agreement has the force and effect of a decree, it follows that Trudeau applies to decrees as well as to agreements. In Balcom, the court applied the principle of law established by Ottone and approved in Trudeau.

The rule stated in Ottone and Trudeau is well grounded and sound. Our concern, however, is not with the statement of the rule, but with its application. The factual situations in Ottone and Trudeau are materially distinguishable from those in the case at bar. The facts in the instant case seem to present a novel question; although the testimony on the hearing of the original petition was concluded on September 5, 1961, the decree of the trial commissioner was not entered until fourteen months later on November 5, 1962.

Although we believe that orderly procedure would be better served by the filing of a motion to reopen the proceedings prior to the entry of the trial commissioner's decision if a petitioner has additional evidence to present prior to such time, it is our opinion that in the peculiar circumstances of this case the interests of justice require that where, as here, the trial commissioner had not decided the merits of the controversy within ten days after the hearing in compliance with ...