Geigy Chemical Corp. v. Zuckerman

• Decision Date: 05 February 1970
• Docket Number: No. 686-A,686-A
• Citation: 106 R.I. 534,261 A.2d 844
• Parties: GEIGY CHEMICAL CORPORATION v. Gerald L. ZUCKERMAN.
• Court: Rhode Island Supreme Court

Page 844

261 A.2d 844

106 R.I. 534

GEIGY CHEMICAL CORPORATION v. Gerald L. ZUCKERMAN.

No. 686-A.

Supreme Court of Rhode Island.

Feb. 5, 1970.

Francis V. Reynolds, Providence, Bernard W. Boyer, Providence, of counsel, for petitioner

Martin Malinou, Providence, for respondent.

OPINION

KELLEHER, Justice.

This is an employer's petition to review an employee's total incapacity. This cause is before us on the employee's appeal from a decree of the Workmen's Compensation Commission affirming the trial commissioner's decree which suspended payment to the employee of weekly compensation payments.

The employer operates a chemical processing plant in the city of Cranston. In 1968, the employee worked at this plant. He was classified as a chemical operator. This is a job which involves the tugging, hauling and lifting of heavy objects. The employee worked a 40-hour week on a rotating shift basis-he would work two weeks from 8 a.m. to 4 p.m.; the next two weeks from 4 p.m. to midnight; and two weeks from midnight to 8 a.m. On April 10, 1968, the employee, as part of his usual routine, was in the process of lifting a 50-pound bag of chemicals when he suffered a back injury which resulted in his hospitalization. The parties then entered into a preliminary agreement which described employee's average weekly wage as being $118.80 and called for the payment of weekly compensation benefits for total incapacity in the amount of $45. This agreement is the subject of the present litigation.

In June 1968, just about two months after he was injured, employee began to work for a furniture store as a combination bill collector and salesman. At this time, employee was still under the care and treatment of an orthopedic surgeon, Dr. Ralph F. Pike. Doctor Pike discharged the employee from any further treatment on July 11, 1968. There is evidence which shows that employee's average weekly earnings at the furniture store were in excess of the weekly wages he had received from petitioner.

While employee contends in his appeal that the full commission's affirmance of the trial commissioner's findings in riddled with error, he takes special issue with the commission's findings that he could return to work and perform all his regular duties as a chemical operator and that he had regained his earning capacity. We shall discuss the correctness of each of these findings as well as the other contentions made by employee.

I The Employee's Physical Condition

Throughout this proceeding, the employee has expressed a fear that he would re-injure himself if he had to return to his job of lifting 50-pound bags of chemicals. The full commission gave little heed to this apprehension, but instead it declared that Dr. Pike's testimony demonstrated that employee could return to work for his employer and do everything he had done before he hurt his back. It is our belief that this conclusion is based on a misconception of the physician's testimony.

Doctor Pike described employee's injuries as a 'back strain and a probable ruptured intervertebral disk.' Although the physician did testify that his patient could return to work as a chemical operator, he qualified this opinion substantially. This medical witness, whose expertise was unquestioned and who appeared as employer's witness, limited his opinion of the employee's physical fitness to the date he last examined him-July 11, 1968. This limitation may be found by examining the following portion of the transcript. The question was posed by the trial commissioner and the reply was Dr. Pike's:

Q. 'On the basis of all the knowledge you known about your patient, is he able as of your last examination, based on everything you know able to do all the duties of the chemical work?'

A. 'I would feel as of the date of my last examination, on that particular time that he could perform the work. I am not saying now as to how long he might be able to perform it, whether this would cause further trouble later on, that at that time he had recovered sufficiently where I think he could physically perform that work.' (italics supplied.)

When asked if employee's back would be subject to an increased susceptibility of re-injury if he returned to his former job, the orthopedist replied:

'I would feel that there certainly is an increased susceptibility to injury to Mr. Zuckerman's back, were he to do heavy work requiring heavy lifting of this sort.'

Furthermore, when pressed by employee's counsel as to whether employee's return to his former employment presented a 'real danger' of his disk slipping again, Dr. Pike answered:

'I would feel that the type of work as a chemical operator would constitute such a danger, it was for this reason I encouraged him to find lighter work.' (italics supplied.)

Doctor Pike's testimony is the only medical evidence on the record. It is clear that he restricted his opinion of employee's ability to engage in his former work on the day he examined him. The doctor would not estimate the duration of time employee could perform the admittedly arduous tasks of a chemical operator. There was, he said, an increased susceptibility and a real danger of re-injury to employee's back if he resumed his former job. The doctor also testified that he had advised employee to look for lighter work. We believe this portion of Dr. Pike's testimony, which the commission overlooked, to be of particular significance.

In Builders Iron Works, Inc. v. Murphy, R.I., 247 A.2d 839, we observed that the general rule is that one who has physically recovered from his injuries to the extent that he can resume his former employment without harmful consequences to himself is no longer entitled to receive weekly workmen's compensation payments. However, we pointed out in the Murphy case that this court is not prepared to say that an employee is, for the purposes of the Workmen's Compensation Act, able to resume his former duties if such a resumption would result in his hazarding his health.

Here the record shows something more than an employee's unfounded fear of re-injury should he go back to his former job. The employee had been advised by his doctor to seek lighter work. The doctor would not say whether employee with his history of a bad back would last five seconds, five hours or five years with his employer once he attempted to lift that first 50-pound bag. In the light of this testimony together with the physician's uncontradicted statements as to the increased susceptibility and real danger of re-injury to employee's back should he return to employer's plant as a chemical operator, we can find no legally competent evidence that employee has recovered from the effects of his back injury to the extent that he is physically fit to resume his former occupation.

The full commission recognizes the Murphy case and attempts to distinguish it from the instant case upon the theory that there was evidence in Murphy that the employee there could not perform all his regular duties while, here, Dr. Pike testified that employee could, upon his return to work, perform all of his required duties. This difference matters little if any. It makes no difference that the employee in the instant appeal can perform all the duties of a chemical operator if to perform them will confront him with a real danger that his disk will be ruptured once more and another period of hospitalization will follow. It is unreasonable, unjust, and utterly unrealistic to force an employee, who has been the recipient of weekly compensation payments, to return to a job where concededly competent medical testimony shows that such a return would create a real risk that the employee would once again be disabled. Our law does not require a worker to endanger himself in order to prove that he is entitled to workmen's compensation. Any other view would do violence to the humanitarian motives which led to the enactment of the Workmen's Compensation Act.

We must therefore hold that the commission erred when it found that employee was physically fit to return to employer's plant and carry out the normal activities incident to his former job.

II The Employee's Earning Capacity

Having decided that employee's physical condition will not allow him to resume his regular work as a chemical operator, we must now turn to the question of whether he may continue to receive weekly compensation payments in the light of his post-injury earnings. This question is all-important because in this state workmen's compensation is not paid to a worker because of his physical disability but because he has, as a result of his injury, suffered an impairment of his earning capacity. Peloso, Inc. v. Peloso, 103 R.I. 294, 237 A.2d 320; United Wire &...