LeBrun v. Woonsocket Spinning Co.

• Decision Date: 13 November 1969
• Docket Number: 672-A and 673-A,Nos. 671-,s. 671-
• Citation: 258 A.2d 562,106 R.I. 253
• Parties: Lucien E. LeBRUN v. WOONSOCKET SPINNING CO., Inc. (three cases).
• Court: Rhode Island Supreme Court

Page 562

258 A.2d 562

106 R.I. 253

Lucien E. LeBRUN v. WOONSOCKET SPINNING CO., Inc. (three cases).

Nos. 671-A, 672-A and 673-A.

Supreme Court of Rhode Island.

Nov. 13, 1969.

Abedon, Michaelson, Stanzler & Biener, Richard A. Skolnik, Providence, for petitioner.

Keenan, Rice, Dolan & Reardon, H. Eliot Rice, Providence, for respondent.

OPINION

ROBERTS, Chief Justice.

This is an employee's original petition for specific compensation for the permanent total loss of the use of his left hand pursuant to G.L.1956, § 28-33-19, as amended by P.L.1963, chap. 50, sec. 1. It was heard together with two petitions filed by the employee seeking to amend a preliminary agreement for specific compensation entered into on December 29, 1966. The trial commissioner, after hearing thereon, denied and dismissed each of the petitions. The petitioner thereafter appealed to the full commission, which affirmed the action of the trial commissioner in denying and dismissing these petitions. From a decree of the full commission affirming the decision of the trial commissioner in each case, the employee is prosecuting an appeal to this court.

The record discloses that the employee, hereinafter referred to as petitioner, sustained an injury to his left forearm on September 9, 1959. On September 16, 1959, petitioner and the employer entered into a preliminary agreement, pursuant to which petitioner was to be paid compensation for a total loss of earning capacity. It is not disputed that the terms of that preliminary agreement have been fully complied with and are not involved in the issues raised in this appeal.

For some time thereafter petitioner was under the care of Dr. Joseph E. Murray, who made repeated attempts to surgically restore some use to petitioner's left hand. There is evidence in the record that a considerable number of such surgical attempts were made but that in October 1966 the surgeon concluded that further surgical intervention would be of no avail and that petitioner's total loss of use of his left hand was permanent.

On December 29, 1966, the employer, acting through its insurance carrier, and petitioner, represented by counsel, entered into a preliminary agreement for the payment of specific compensation pursuant to the statute for the total and permanent loss of use of his left hand. This preliminary agreement provided that the specific compensation to be paid petitioner would be in the amount of $24 a week for a period of 199 weeks commencing as of October 26, 1965.

In the instant proceeding petitioner is seeking either an amendment to the preliminary agreement or an original decree awarding him specific compensation in the amount of $30 a week for a period of 244 weeks instead of the $24 for 199 weeks as was provided originally in the preliminary agreement of December 29, 1966.

It is clear that, at the time of the execution of the preliminary agreement in December 1966, the parties contemplated payment of specific compensation to petitioner pursuant to the provisions of the statute providing for specific compensation, § 28-33-19, in the form in which it stood prior to its amendment in 1963 and at the time petitioner sustained the original injury to his left hand in September 1959. It would appear, then, that the parties acted on the assumption that petitioner's cause of action for specific compensation arose at the time the original injury to his left hand was sustained, that is, in September 1959.

The statute provides that specific compensation will be paid, inter alia, for the loss by severance of either hand at or above the wrist for a period of 244 weeks. The statute provides also that, whenever any bodily member or portion thereof has been rendered permanently stiff or useless, specific compensation shall be paid as if that member or portion thereof had been severed completely. The statute, in our opinion, discloses a legislative intent that an injured worker is entitled to specific compensation provided for therein at the time when the uselessness of the bodily member or portion thereof becomes permanent.

It is not disputed that the pertinent provisions of the statute were amended in 1963 so as to provide larger payments of specific compensation under the amended statute, in effect at the time that the preliminary agreement was executed, that is, in December 1966. If the statute as amended were applicable, it is conceded that this petitioner would be entitled to payments of $30 weekly for 244 weeks.

The petitioner is now contending that his right to specific compensation arose in October of 1966 when, he argues, the surgeon concluded that the total loss of use had become permanent and not at the time of the original injury. In so contending, he relies primarily on the decision of this court in Sherry v. Crescent Co., 101 R.I. 703, 226 A.2d 819. In that case we held that a cause of action for specific compensation accrues to an injured employee at the time of the occurrence of the condition prescribed in the statute as constituting the injury for which specific compensation is awardable.

In Sherry we considered the provisions of the statute which provide for specific compensation for the irrecoverable loss of sight of either eye or the reduction to 1/10 or less of normal vision with glasses, the statute equating 1/10 with a reading on the Snellen chart of 20/200. The employee in that case suffered a gradual loss of vision in one eye which ultimately reduced his vision to 20/200, and we held that, at the time when his vision was reduced to 20/200, the compensable injury had occurred and that the employee was entitled to compensation pursuant to the terms of the statute then in effect.

Here, however, we are confronted with the question of when...