Jules Desurmont Worsted Co. v. Julian, 1263.

• Citation: 183 A. 846
• Decision Date: 26 March 1936
• Docket Number: No. 1263.,1263.
• Parties: JULES DESURMONT WORSTED CO. v. JULIAN.
• Court: United States State Supreme Court of Rhode Island

183 A. 846

JULES DESURMONT WORSTED CO.

v. JULIAN.

No. 1263.

Supreme Court of Rhode Island.

March 26, 1936.

Appeal from Superior Court, Providence and Bristol Counties; Alexander L. Churchill, Judge.

Proceeding under the Workmen's Compensation Act by Lillian Julian, claimant, opposed by the Jules Desurmont Worsted Company, employer. From a decree of the superior court dismissing its petition for review, the employer appeals.

Appeal denied and dismissed, decree affirmed, and cause remanded, with directions.

Moss, Haslam & Arnold, W. Vincent Sumpter, and Harry A. Tuell, all of Providence, for petitioner.

Kennedy & Greene, of Woonsocket, for respondent.

BAKER, Justice.

This cause is before us on the petitioner's appeal from a decree of the superior court dismissing, on motion of the respondent, a petition for review filed by the petitioner under General Laws 1923, c. 92, art. 3, § 13, commonly known as the Workmen's Compensation Act.

On February 24, 1931, the petitioner and the respondent, as employer and employee respectively, entered into a preliminary agreement under the provisions of the Compensation Act, whereby it was agreed that the petitioner pay to the respondent a certain stipulated sum weekly, as compensation for an injury the latter had received to her knee, February 6, 1931, while in the course of her employment, which injury caused total incapacity at that time.

Thereafter, on April 16, 1932, the employer filed in the superior court a petition for review, claiming that the employee had ceased to be totally incapacitated for work. After a hearing, this petition was denied and dismissed by a decree entered in that court, May 31, 1932. A second petition for review was filed by the petitioner, September 19, 1932. This petition set out the same grounds as the previous petition, and in addition alleged that, if the respondent was still totally incapacitated, such condition could be remedied by an operation on her knee, which operation the petitioner offered to have performed at its expense, but that the respondent had refused to undergo such an operation, and it therefore prayed that it be relieved from making any further payments to her. Following the filing of this petition, an interlocutory decree was entered, appointing a physician as medical examiner, under the provisions of section 21, article 2, of the Compensation Act, to examine the respondent in order to determine the nature, extent, and duration of her injury, and particularly as to the necessity and advisability of an operation on her knee to relieve her from disability, and to report thereon to the superior court. Accordingly, an examination of the respondent was had, and the physician filed his written report as ordered. Thereafter, on February 2, 1933, a justice of that court filed a rescript in which he found as a fact that an operation was not necessary, that the respondent was still totally incapacitated for work of the character she was engaged in at the time of the accident, and dismissed the petition for review. No decree was entered in the superior court following these findings. The third petition for review, and the one now before us, was filed in the superior court by the petitioner, December 28, 1934.

The respondent's contention, which is denied by the petitioner, is that the present petition for review is filed too late. This issue calls for a construction of the language used in section 13, article 3 of the Compensation Act. The following are the material portions of this section: "Sec. 13. At any time before the expiration of two years from the date of the approval of an agreement, or the entry of a decree fixing compensation, but not afterwards, and before the expiration of the period for which compensation has been fixed by such agreement or decree, but not afterwards, any agreement, award, findings or decree may be from time to time reviewed by the superior court upon the application of either party, after due notice to the other party, upon the ground that the incapacity of the injured employee has subsequently ended, increased, or diminished. Upon such review the court may increase, diminish, or discontinue the compensation from the date of the application for review, in accordance with the facts, or make such other order as the justice of the case may require, but shall order no change of the status existing prior to the application for review. The finding of the court upon such review shall be served on the parties and filed with the clerk of the court having jurisdiction, in like time and manner and subject to like disposition as in the case of original decrees."

The petitioner urges that, in reviewing findings of the superior court as embodied in a rescript filed by that court, the findings in such rescript must be considered as having the same legal effect as a decree, and that a petition for review may properly be filed at any time within two years after the date of the filing of the rescript, or before the expiration of the period for which compensation has been fixed, if such period be less than two years. This latter contingency is not involved herein because there had been no fixing by the parties, the commissioner of labor, or the court, of any definite period for which compensation was to be paid, other than for the duration of the total incapacity of the employee. In the instant cause the rescript containing the findings sought to be reviewed was filed February 2, 1933, and the present petition was filed within two years from that date, viz. on December 28, 1934.

The petitioner maintains that the construction it places on the above section is correct because of the requirement that the finding of the superior court upon a review "shall be served on the parties and filed with the clerk of the court, * * * in like time and manner and subject to like disposition as in the case of original decrees." The petitioner compares this procedure with that required under section 6, article 3 of the Compensation Act, as amended by Public Laws 1928, c. 1207, relating to the disposition of original petitions, on appeal from the commissioner of labor, wherein it is required that decisions in writing be filed with the clerk of the court and a decree entered thereon containing findings of fact. The petitioner contends that the decree in the latter instance and the findings upon a petition for review in the former instance are intended to have the same effect under the act. It then argues that as original decrees fixing compensation are reviewable under section 13 within two years from their entry, unless a shorter period for the payment of compensation is fixed, so also are findings on a petition for review filed under that section.

The respondent contends that the reasonable meaning of section 13 is that petitions for review must be filed not later than two years from the date of the approval of the original agreement...