Imperial Knife Co. v. Gonsalves

• Decision Date: 09 July 1957
• Docket Number: No. 2580,2580
• Citation: Imperial Knife Co. v. Gonsalves, 133 A.2d 721, 86 R.I. 68 (R.I. 1957)
• Parties: IMPERIAL KNIFE CO., Inc. v. Madeline GONSALVES. Eq.
• Court: Rhode Island Supreme Court

Page 721

133 A.2d 721

86 R.I. 68

IMPERIAL KNIFE CO., Inc. v. Madeline GONSALVES.

Eq. No. 2580.

Supreme Court of Rhode Island.

July 9, 1957.

Boss, Conlan, Keenan, Bulman & Rice, Providence, for petitioner.

John Quattrocchi, Jr., Providence, for respondent.

PAOLINO, Justice.

This is an employer's petition brought under the Workmen's Compensation Act General Laws 1938, chapter 300, as amended, to review a preliminary agreement providing compensation for total incapacity. The case is before us on the respondent employee's appeal from the decree of the workmen's compensation commission affirming the decree of the trial commissioner granting the employer's petition and ordering payment of compensation for partial incapacity.

The preliminary agreement stated that on September 7, 1955, while working for petitioner as a power press operator, the employee caught the fingers of her right hand in the power press, resulting in traumatic amputation of the second, third and fourth fingers and a compound fracture of the distal phalanx of the fifth finger. The agreement provided for payment of compensation for the duration of total incapacity at the rate of $32 per week based on an average weekly wage of $53.42.

On August 20, 1956 the employer filed the instant petition to review the facts relating to the incapacity of the employee and alleged therein, among other things, that her incapacity had ended or in the alternative had been substantially reduced. The petitioner therein prayed for the entry of a decree discontinuing or diminishing the compensation payments provided for in the preliminary agreement.

At the hearing before the trial commissioner on October 8, 1956 respondent testified that she was thirty years old, married, and had two children of school age; that she was right handed; and that she had worked as a power press operator for petitioner for a year before her injury. She further testified that because of the injury she was totally disabled and could do no work of any kind; that she had not tried to get work; that as a result of her injury she could not do what she used to do; that she was very high strung; and that any little thing would upset her.

The petitioner's evidence consisted of the medical reports of the two doctors who had reated her. The report of Dr. J. Robert Bowen, dated February 3, 1956, stated that 'it was felt that she could return to light work if this was available around the second or third week of January. * * * It was also felt that she should not return to heavy work and certainly not to work on the large foot press or a machine of its type at which she was injured.' The evidence shows that the employee last visited Dr. Bowen in February 1956, after which she was treated by her family physician, Dr. E. Arthur Catullo, who took care of her until July 13, 1956. His report, which is dated July 23, 1956, concludes by stating: 'She should now be able to do work which does not involve any machinery or press work or firm gripping with her right hand.' The record fails to disclose any offer by the employer to respondent of suitable work which she was able to perform, nor does the record show any evidence by it that such suitable work was available elsewhere.

The decree entered by the trial commissioner on October 23, 1956 and affirmed by the full commission found that respondent was no longer totally incapacitated and that she remained partially incpacitated. It ordered that the payments of compensation for total disability cease forthwith and that 'the petitioner shall pay to the respondent weekly compensation for partial disability equal to 60% of the difference between $53.42 and the weekly wages, earnings or salary which the respondent earns hereafter, but not more than $22.00 per week * * *.'

In her reasons of appeal respondent claims in substance that there is no evidence to sustain the findings of fact made by the commission; that the decree is against the law, the evidence and the weight thereof; and, finally, that the full commission has misconceived the evidence and the law. Under such reasons the respondent contends that the burden of proving that total incapacity has diminished or ended is on the employer as the moving party and that it has failed to sustain such burden because there is no evidence to support the findings of fact in issue. The respondent further contends that the employer has failed to sustain its burden of proving that the employee does not come within the rule of the 'odd lot' doctrine, and that the decree is erroneous because, since the instant petition was heard on October 8, 1956, it is governed by art. II, sec. 11, as amended by Public Laws 1956, chap. 3784. This amendment became law on May 3, 1956, amending P.L.1954, chap. 3297, which had amended G.L.1938, chap. 300, in its entirety.

The petitioner, however, contends that the medical reports, as well as reasonable inferences which could be drawn from respondent's testimony, are legal evidence to support the findings of fact made by the trial commissioner and affirmed by the full commission. It further...