Davol, Inc. v. Aguiar
| Citation | 463 A.2d 170 |
| Decision Date | 19 July 1983 |
| Docket Number | No. 80-367-A,80-367-A |
| Parties | DAVOL, INC. v. Andriano AGUIAR. ppeal. |
| Court | United States State Supreme Court of Rhode Island |
This is an appeal from a decree of the Workers' Compensation Commission by the employee, granting the employer's petition to review a preliminary agreement alleging that the employee was no longer disabled.
The record reveals that the employee, Andriano Aguiar, was injured on January 4, 1977, while working for the employer, Davol, Inc., when he slipped and fell while pushing a steel drum. The drum rolled against him, causing severe contusions of his left arm and shoulder. In a preliminary agreement dated January 28, 1977, the employer agreed to pay him compensation benefits for his total incapacity. On May 23, 1979, the employer filed a petition to review the preliminary agreement, alleging that employee's total incapacity for work had ended and that he was able to return to "light selected work."
Doctor A. Louis Mariorenzi, who examined the employee on behalf of the employer, testified that on the basis of his examination he thought that the employee "was capable to [sic] return to full employment with no restrictions and no limitations."
Doctor Louis Corvese, the employee's treating physician, testified under subpoena. When the employer attempted to introduce into evidence a copy of the doctor's report, the employee objected on the ground that a copy had not been forwarded to him as required by G.L.1956 (1979 Reenactment) § 28-35-10. 1
However, Dr. Corvese was allowed to testify from his report that the employee was "improved but not quite asymptomatic, persistent complaints of the left shoulder and wrist, no notable physical findings other than for tenderness to palpation." He further testified that his report indicated that the employee would be available for light work as of June 1977. The report stated that the employee could return to work as of May 1, 1979.
Doctor Peter Pizzarello, testifying on behalf of the employee, found him totally disabled from pushing 400-pound drums and partially disabled but able to be employed at light duty which would not include excessive pushing and/or pulling.
The trial commissioner found that the employee was no longer totally incapacitated but was partially disabled. The commission, however, gave more weight to the findings and opinion of Dr. Corvese as contained in his report and noted that the other two doctors examined the employee for the sole purpose of rendering an opinion as to his disability. Accordingly, the commission found that the employee was no longer disabled and suspended all further compensation payments.
The issues before this court are: (1) whether Dr. Corvese's medical report was inadmissible because a copy of that report was not furnished to the employee's attorney pursuant to § 28-35-10; (2) whether Dr. Corvese's report was inadmissible because he was subpoenaed by the employer to testify at the hearing but refused to give an expert opinion, thus precluding cross-examination by the employee; and (3) whether the commission erred when it independently weighed the evidence without giving any weight to the trial commissioner's findings of fact.
The employee objected to the introduction of Dr. Corvese's report into evidence on the ground that a copy had not been forwarded to him pursuant to § 28-35-10. If a copy of any document, report, or statement which is covered by the statute is not provided to the employee, any information so obtained may be excluded from the evidence at the hearing. Section 28-35-10. This legislation was intended to put the employee on an equal footing with his employer regarding information that an employer would have access to because of its records and insurer's reports made before any compensation claim is filed. Giordiano v. Uniroyal, Inc., 108 R.I. 226, 231, 273 A.2d 855, 858 (1971).
In the instant case, however, the report received by the employer's insurance company from the employee's attending physician was required by § 28-33-8, P.L.1979, ch. 391, § 2. This section provides in pertinent part that no claim for care of medical treatment by an employee is valid against the employer unless the physician or institution giving treatment to the employee "shall as often as every two (2) months thereafter while the services or treatment continue in writing present to the employer a signed progress report of the employee's condition * * *." The Legislature did not intend, however, to include reports required by § 28-33-8 within the provisions of § 28-35-10. Section 28-35-10 specifically enumerates that "hospital records, nurses' notes, personnel records, reports or statements by foremen or any other supervisory employees at the injured employee's place of employment," must be sent to the employee. If the Legislature wanted medical reports to be sent to employees, it would have imposed such a requirement in the same section. 2 Thus, the trial commissioner properly admitted Dr. Corvese's report into evidence.
The second issue is whether Dr. Corvese's report was inadmissible because the employee could not cross-examine Dr. Corvese concerning his expert opinions. The record shows that Dr. Corvese's report was admitted into evidence as a full exhibit. The employee's sole objection was on the basis of § 28-35-10.
Doctor Corvese appeared pursuant to a subpoena and testified as a lay witness. He testified, reading from his report, concerning his physical findings. At no time was Dr. Corvese required to answer questions which called for his expert opinion. However, no objection was made by the employee regarding his inability to question Dr. Corvese's expert opinion. Therefore, absent a formal objection, the employee is precluded from raising this argument as a basis for error. See Natalizia v. Atlantic Tubing & Rubber Co., 81 R.I. 515, 520, 105 A.2d 190, 192 (1954).
The third issue of this case is whether the commission erred in reversing the trial commissioner on the ground that more weight should have been given to Dr. Corvese's testimony and report than the other two physicians'. The crucial issue is what standard should the commission employ on review.
The employer argues that the commission's duty is to weigh the evidence in the record, to find where the fair preponderance lies, and to make its own findings of fact. In support of this contention, the employer cites a line of Rhode Island case law which states that when the commission reviews a decree of a trial commissioner, it must examine and weigh the evidence, draw its own...
To continue reading
Request your trial
-
Sherman v. Gifford, C.A. No. PC-2006-3245 (R.I. Super 8/21/2009)
...unless clearly wrong, in a situation in which his decision was based on such a credibility finding." Id. (citing Davol, Inc. v. Aguiar, 463 A.2d 170, 174 (R.I. 1983)). Thus in Verte, only because the trial commissioner's findings were not based on first-hand observations, did the second-tie......
-
Deery v. R.I. Departmentof Human Servs.
...informed judicial review, thus impliedly determining Appellant's credibility. See 3 Soc. Sec. LP § 36:37; see also Davol, Inc. v. Aguiar, 463 A.2d 170, 174 (R.I. 1983) (when the trier of fact observed conflicting live testimony, he necessarily made a determination of each witness' credibili......
-
Hicks v. Vennerbeck & Clase Co.
...pain. According to Hicks, the acceptance of his rebuttal testimony involved an assessment of his credibility. Citing Davol, Inc. v. Aguiar, 463 A.2d 170 (R.I.1983), for the proposition that in reviewing findings flowing from an assessment of credibility the appellate commission may not inde......
-
Blecha v. Wells Fargo Guard-Company Service, GUARD-COMPANY
...the law and the fair preponderance of the evidence[,]" thereby "giving the [division] a de novo standard of review." Davol, Inc. v. Aguiar, 463 A.2d 170, 173 (R.I.1983). There must be a finding that the trial commissioner was clearly wrong or misconceived or overlooked material evidence bef......