General Road Trucking Corp. v. Pina

• Decision Date: 06 April 1972
• Docket Number: No. 1486-A,1486-A
• Citation: 110 R.I. 7,289 A.2d 425
• Parties: GENERAL ROAD TRUCKING CORPORATION v. Bernardino PINA. ppeal.
• Court: Rhode Island Supreme Court

Page 425

289 A.2d 425

110 R.I. 7

GENERAL ROAD TRUCKING CORPORATION v. Bernardino PINA.

No. 1486-Appeal.

Supreme Court of Rhode Island.

April 6, 1972.

Higgins, Cavanagh & Cooney, Harold E. Adams, Jr., Providence, for petitioner-appellee

Abedon, Michaelson, Stanzler & Biener, Richard A. Skolnik, Providence, for respondent-appellant.

OPINION

KELLEHER, Justice.

The single issue raised in this employee's appeal from a decree of the Workmen's Compensation Commission is whether the full commission erred when it affirmed the trial commissioner's denial of the employee's request for a counsel fee and the cost of a transcript.

The employee worked as a truck driver. On May 5, 1969, he injured his back when he fell off the vehicle. Subsequently, the parties executed a preliminary agreement that called for the payment of weekly benefits of $45 for the duration of the employee's total incapacity. Still later, on November 27, 1970, the employer filed a petition to review in which it alleged that its employee was able to return to light selected work. When this matter was heard before a trial commissioner on December 23, 1970, a consent decree was entered finding that the employee's incapacity had been reduced from total to partial. The decree ordered the employee to make a bona fide effort to obtain suitable work and directed the employer to continue the total incapacity payments during the interval when the employee was seeking work. The employee returned to the commission on February 5, 1971, and again on March 5, 1971, and testified about his fruitless efforts to find work. Thereafter, a second decree was entered in which the trial commissioner, after finding that the employee had made a genuine but unsuccessful attempt to obtain suitable employment, ordered the employer to continue the weekly $45 payment. The trial commissioner, however, declined to award any counsel fee or costs. His determination was approved by the full commission.

The employee's uninterrupted receipt of a weekly payment of $45 is the result of the second proviso of G.L.1956 (1968 Reenactment) § 28-33-18, ¹ which permits a partially incapacitated employee who has made a bona fide but unsuccessful effort to obtain suitable work to receive weekly compensation in the amount that is paid for total incapacity.

Costs, including fees for counsel and expert witnesses, are authorized by § 28-35-32. The statute limits such payments to the employees who either 'successfully prosecute' a petition for various benefits payable under the Workmen's Compensation Act or 'successfully defend, in whole or in part,' any petition for review filed by his employer. The commission's denial of the employee's request for a counsel fee was based on its notion that the sole successful litigant in the instant proceeding was the employer because it had sustained an allegation that its employee's incapacity had been reduced from total to partial. We do not agree.

The clear purpose of an employer filing a petition to review is an attempt on his part to diminish or completely eliminate the weekly benefits being paid the employee. The second proviso obligates a partially incapacitated worker to seek gainful employment so that if he finds suitable work, the extent of the loss of his earning capacity might be measured. ² The partially incapacitated employee can forestall any reduction in the benefits presently being paid to him if he convinces the commission that he has scouted the job market and cannot secure a position that is within his capabilities. If he satisfies the commission as to the sincerity of his...