Davol Rubber Co. v. Lafoe, 1019-A
| Citation | 277 A.2d 128,108 R.I. 499 |
| Decision Date | 07 May 1971 |
| Docket Number | No. 1019-A,1019-A |
| Parties | DAVOL RUBBER COMPANY and Aetna Casualty and Surety Company v. Irene E. LAFOE. ppeal. |
| Court | United States State Supreme Court of Rhode Island |
This is an employer's petition to review a decree of the Workmen's Compensation Commission under which the employee was receiving weekly benefits for total disability. Hearings thereon which commenced on May 14, 1969, were extended over a period of several months. In the course thereof, if was developed that Doctor Savastano, an orthopedic surgeon, had examined employee and his report was introduced into evidence. He gave as his opinion therein and also testified that employee's condition had improved and that she was now able to do light work. Pressed by employee's counsel, he refused to change his opinion.
Doctor Mongillo, qualified in psychiatry and neurology, also submitted reports based on his examination and treatment of employee which, although stating that employee was suffering from post-traumatic neurosis, revealed that she was, nevertheless, capable of doing light work. Indeed, this report recommended that employee make every effort to help herself by obtaining light work. His last such report was dated July 14, 1969.
Called to testify, Dr. Mongillo categorically stated, 'My opinion is that she can do light work.' He further testified that the post-traumatic neurosis, for which he had treated employee, does not incapacitate completely. On cross-examination, he candidly conceded that when he began to treat employee on December 9, 1968, 1 she was totally incapacitated, but that following a visit to Florida the following spring her condition improved and he now believed that she was capable of doing light work.
Doctor Cinquegrana, qualified as a specialist in physical medicine, was called by employee in opposition to employer's petition to review. He testified that as of July 28, 1969, when he last examined employee, she was still totally disabled. Additionally, he testified in medical terms to the reason for his opinion that employee's incapacity for work remained total.
After the parties had rested, the single commissioner found as a fact that employee's incapacity had diminished from total to partial and that she was now capable of performing light work. Accordingly, conformable to the practice under the then second proviso of G.L.1956, § 28-33- 18, 2 an interlocutory decree was entered on August 18, 1969. It contained the single commissioner's findings of fact that employee's incapacity had diminished from total to partial, and that she was capable of doing light work. This decree ordered employer to continue to pay employee for total incapacity during the period that employee was to seek the light work that she would be able to perform. The single commissioner then continued the case to September 10, 1969, at which time the employee was to return to testify about her efforts to find suitable work.
On said latter date, employee appeared and stated that because she did not feel well she had made no effort to seek employment of any kind. She further stated that she had an appointment with Dr. Julius Stoll, a neurosurgeon, for September 22, 1969, and requested that the hearing be further continued until after his examination. This request was granted, and after two further continuances, hearing was resumed on October 29, 1969.
At this hearing, testimony was received from Dr. Stoll who had examined employee on September 23, 1969. He stated that, in his opinion, employee was physically unable to get about and look for light work that the two other doctors had testified she was able to do.
Thereafter in a decision denying employee the total disability compensation to which a partially incapacitated employee who qualified under the second proviso of § 28-33-18, would be entitled, the single commissioner expressly rejected the testimony of employee's neurosurgeon. Additionally he commented on his personal observations of employee's general attitude and demeanor, and concluded that she had not made a bona fide effort to obtain suitable work.
Accordingly, on November 10, 1969, a decree was entered which contained four findings of fact. These are:
From this decree employee seasonably appealed to the full commission which entered its decree affirming the decree of the single commissioner. From the final decree of the full commission employee seasonably appealed to this court.
In connection therewith, she assigns a total of 14 reasons of appeal. However, these can be compressed into three substantive contentions and will be so discussed and considered.
The first such contention is that the findings of fact numbered one and two; namely, that employee's incapacity is no longer total but partial, and that she is capable of doing suitable work are not supported by competent evidence. In support thereof, she points to the fact that Dr. Stoll's examination was conducted several months after the examinations conducted by Dr. Savastano and Dr. Mongillo. With this as her premise, she argues that Dr. Stoll's testimony was, in effect, uncontradicted. She makes this argument because the single commissioner in his decision relied heavily on the testimony of Dr. Savastano and Dr. Mongillo. What employee ignores, however, is that the single commissioner expressly rejected Dr. Stoll's testimony and, moreover, commented unfavorably on his personal observations of employee's general demeanor and attitude. In short, the decision of the single commissioner, when read in light of the whole record on which it was reached, discloses that he found the prognoses of Dr. Savastano and Dr. Mongillo were such as to outweigh the opinion of Dt. Stoll even though the latter's examination of employee was subsequent to that of the doctors on whose testimony the single commissioner relied. This, coupled with the impression created by employee, led him to conclude that her incapacity was no longer total but was, in fact, partial.
The employee's first contention is therefore without merit, it being elementary that, absent fraud, findings of fact, supported by competent evidence or reasonable inferences to be drawn therefrom, are binding on this court.
Neither is there merit to employee's contention that there is no competent evidence to support the finding that she did not make a bona fide effort to find suitable work. This contention, like her first, is predicated on the proposition that Dr. Stoll's testimony stands uncontradicted. As heretofore noted, the single commissioner expressly rejected Dr. Stoll's opinion as being not persuasive in light of the medical evidence adduced from the testimony and reports of Dr. Savastano and Dr. Mongillo. There is, moreover, in connection with this contention the finding of the single commissioner that employee's demeanor and general attitude indicated an unwillingness rather than an inability to do any work whatsoever.
This brings us to a consideration of employee's remaining contention which, like the first two contentions heretofore considered, is predicated on one or more of her reasons of appeal.
As stated in finding of fact three, the employer offered neither suitable work that she was able to perform, nor evidence that such work was available elsewhere. Its failure in this regard, employee forcefully argues, entitles her to the benefits of the second proviso even assuming that she made no bona fide search for work that she was able to perform. In support thereof she cites Darlington Fabrics Corp. v. Bury, 95 R.I. 62, 182 A.2d 437, which concededly points in her favor.
There, the employee who was receiving weekly benefits for total compensation was found by the Workmen's Compensation Commission on the employer's petition to review not to have made a bona fide effort to obtain suitable work. There also, the employer offered neither suitable work nor...
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