Kaiser Aluminum & Chemical Corp. v. Puniello, 77-400-A

• Decision Date: 18 November 1980
• Docket Number: No. 77-400-A,77-400-A
• Citation: 422 A.2d 746
• Parties: KAISER ALUMINUM & CHEMICAL CORP. v. John PUNIELLO. ppeal.
• Court: Rhode Island Supreme Court

Page 746

422 A.2d 746

KAISER ALUMINUM & CHEMICAL CORP. v. John PUNIELLO.

No. 77-400-Appeal.

Supreme Court of Rhode Island.

Nov. 18, 1980.

Quinn, Cuzzone & Geremia, Bruce Q. Morin, Providence, for petitioner.

Lovett & Linder, Ltd., Raul L. Lovett, Providence, for respondent.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a decree of the Workers' Compensation Commission holding that John Puniello (the employee) was no longer incapacitated for work by reason of an injury sustained in the course of his employment. The sole issue presented by the appeal was the correctness of a finding by the commission that the physician who testified at the hearing on the petition for review was the treating physician as opposed to an examining physician as defined in G.L. 1956 (1979 Reenactment) § 28-33-34. ¹ It is contended by the employee that this physician was an examining physician selected by the employer and that his testimony should have been inadmissible since he did not mail medical reports to the employee and his attorney as required by the statute. The Full Commission held that the physician was the employee's attending physician and, therefore, was not subject to the requirements of § 28-33-34.

The facts underlying this controversy are as follows. On October 19, 1976, the employee, while employed by Kaiser Aluminum and Chemical Corporation (the employer), sustained a work-related injury. As a result of that injury, the employee and the employer entered into a preliminary agreement dated November 4, 1976. The preliminary agreement provided for compensation for partial incapacity commencing October 20, 1976, and was subsequently approved by the Director of Labor. The employer paid the employee according to the terms of this agreement.

In March of 1977, the employer filed a petition to review the preliminary agreement on the ground that the employee's incapacity for work had ended. During the hearings before the trial commissioner, the employer presented Dr. Hubert Holdsworth as a witness in support of its contention that the employee's incapacity had ended. The employee objected to this testimony on the ground that Dr. Holdsworth was the employer's examining physician. There was evidence that the employee was referred by the employer's plant nurse to Dr. Holdsworth, who saw the employee on October 19, 1976, at the Bristol Medical Center. Doctor Holdsworth prescribed a course of treatment for the employee and saw him on four additional occasions during the next several weeks at his place of employment. On the basis of this evidence, the trial commissioner found that Dr. Holdsworth was the employee's attending physician in the following terms:

"I am satisfied in this matter that Dr. Holdsworth, although on the petitioner's payroll as the company physician in the Petitioner's plant, was the respondent's attending physician and did render treatment to the respondent. I do not feel the question as to who paid for the services rendered is material and that the testimony of Dr. Holdsworth was properly admitted into evidence."

Thereafter, the Full Commission approved this finding with these comments:

"Counsel for the respondent attempted to show that Dr. Holdsworth was not the respondent's personal attending physician, but instead was the physician for the petitioner. It may be that his first examination was made on that...