Leva v. Caron Granite Co.

• Decision Date: 27 July 1956
• Docket Number: No. 2395,2395
• Citation: 124 A.2d 534,84 R.I. 360
• Parties: Peter LEVA v. CARON GRANITE COMPANY. Eq.
• Court: Rhode Island Supreme Court

Page 534

124 A.2d 534

84 R.I. 360

Peter LEVA v. CARON GRANITE COMPANY.

Eq. No. 2395.

Supreme Court of Rhode Island.

July 27, 1956.

Guy E. Gallone, Providence, for petitioner.

Francis V. Reynolds, Richard P. McMahon, Providence, for respondent.

CONDON, Justice.

This is an original petition for compensation under the occupational disease provisions of the workmen's compensation act, general laws 1938, chapter 300, article VIII, as amended by public laws 1954, chapter 3297. The petition alleges that the petitioner was last employed by the respondent as a stonecutter, and that over a period of time he contracted silicosis which arose out of and in the course of his employment. From the decree of the workmen's compensation commission affirming the decree entered by the single commissioner, who heard the cause originally and awarded the petitioner compensation for total disability, the respondent has appealed to this court. In support of its claim of appeal respondent duly filed sixteen reasons. However, it has not briefed each reason specifically. We gathered from its brief and argument that it has impliedly waived all reasons except those which alleged that the decree appealed from is against the law, is without any supporting legal evidence, and is violative of article I, § 2 of the constitution of this state and of article XIV, § 1, of amendments to the constitution of the United States. The respondent has briefed those contentions under six points. We assume that all the reasons of appeal which cannot be comprehended under any of such points are waived.

We shall consider respondent's points in the order in which it has briefed them, but before doing so a clearer understanding of our treatment of them may be had if we summarize here the undisputed facts in evidence on which they are based. The petitioner, who is sixty-six years of age, has followed the ocupation of a stonecutter for forty-nine years. In May 1952 he was working at his trade for the Cumberland Monumental Works where he had been employed during the next preceding thirteen years. The evidence shows that the Cumberland Monumental Works is not within the workmen's compensation system because it has never accepted the act. On May 8, 1952 he had to quit work because he did not feel well. He was weak, had a hacking, dry cough and shortness of breath, and he consulted a doctor. He never returned to Cumberland Monumental Works and remained out of work until August 1952.

In that month respondent's manager, Maurice L. Caron, called on him and asked if he would work for respondent while their regular stonecutter, Aldo Consigli, a friend of petitioner, was confined to the hospital where he was to undergo an operation. The petitioner agreed, with the understanding that he was to continue on the job only until Consigli was able to return to work. He worked seven weeks from August 18, 1952 to October 3, 1952 when he was laid off, because work was reduced to such a minimum that the assistance of a stonecutter was not necessary. Consigli returned to work November 10, 1952.

On October 7, 1952 petitioner consulted Dr. Nathan J. Kiven who examined his chest with the fluoroscope and then sent him to another doctor to be X rayed. From the fluoroscopic examination and the X rays he diagnosed petitioner's disease as silicosis. He expressed the opinion on the witness stand that it was contracted at leat 'a couple of years before October 1952' and maybe longer. He testified further that petitioner could never again do stonecutting or any laborious work but he probably could do light work such as that of a watchman.

On April 20, 1953 Dr. Joseph C. Johnston examined petitioner on respondent's behalf. He found that he was then suffering from advanced silicosis and that he must have had the disease a good many years prior to the date of the examination. The doctor stated that petitioner was permanently disabled from working as a stonecutter or doing any work where he could come in contact with dust. He expressed the opinion that he could do work sitting down 'maybe as a checker or an elevator operator, some menial job, a storekeeper or a clerk, but not to be exposed to any type of dust.' He also testified that petitioner could not have contracted the disease during the period he worked for respondent.

The petitioner testified that he was sick when he was working for respondent; that he got worse there; and that the air of the room in which he worked was filled with dust while he was cutting. He further testified that he felt no better at the hearing; that he was going to Dr. Kiven 'every couple of months' for examinations of his chest; and that he could not do any light work although he wished he could. He admitted he never told respondent about his condition after he left its employ. He testified that he went there before Christmas 1952 for a calendar and had some conversation with Mr. Caron. He told Mr. Caron he was sick. Apparently it was not until the following March 1953 when he consulted counsel that he notified respondent he was disabled by silicosis.

Maurice L. Caron, president and treasurer of the respondent company and its manager, testified concerning conditions under which what terms he had been hired and under what terms he had been hired to work. He also testified concerning his knowledge of petitioner's health at the time he went to work for respondent and during his employment. He admitted that when petitioner started to work he was not in good health but he was feeling well enough to work. He also testified in answer to a question put by the commissioner that petitioner 'expressed the fact that he wasn't well,' but he continued to work and he, Caron, did not have him examined as he thought it likely he would see his own physician.

It is evident from such undisputed facts that petitioner did not contract silicosis during the brief period he worked for respondent; that he already had the disease when respondent hired him; that at such time and throughout his employment he exhibited symptoms associated with the disease and observable to Caron; and that Caron knew petitioner was not well but did not know how serious his condition was. It also clearly appears that petitioner did not give any formal notice to respondent of the nature of his condition until March 10, 1953, when it was served with a copy of the instant petition for compensation, the original of which was filed in the office of the director of labor on March 9, 1953. It is not so clear that petitioner is totally disabled. The medical testimony seems to be undisputed that he may be able to do some kinds of very light work. However, petitioner testified that he could not do any work.

The single commissioner found that petitioner is suffering from silicosis which was contracted in his employment of stonecutting; that it was contracted prior to August 18, 1952; that it got worse in respondent's employ due to the conditions at respondent's place of business and the nature of petitioner's work there; that as a result he became totally disabled on October 4, 1952 and is so at the present time; that petitioner did not make any willfully false representation in writing that he had not previously suffered from the disease; and that his average weekly wage at the time of his disablement was $84 a week. He did not make any express finding that petitioner had complied with the requirements of notice as provided in art. VIII, § 9. A decree embodying such findings was duly entered and later on appeal it was affirmed by a decree of the full commission.

The respondent contends that on the undisputed facts the decree awarding compensation to petitioner was clearly erroneous and contrary to law. Its first contention is that it is contrary to art. VIII, §§ 3 and 10 of the act in that the disease was not contracted in its employ and the information concerning the prior employer, Cumberland Monumental Works, is insufficient to enable respondent to take proceedings against said employer under section 8. In support of its position the respondent has made an elaborate argument in which it urges a construction of sections 3 and 10 in connection with that section with which, after careful consideration, we are unable to agree.

Section 3 requires a petitioner, who seeks compensation for disability due to one of the occupational diseases listed in the schedule in section 2, to show first that the disability was actually due to such disease, and secondly, that the disease itself was due to the nature of his employment and that it was contracted in such employment. In the instant case those requirements have been met.

The testimony is undisputed that petitioner is disabled by silicosis which was contracted in the employment of stonecutting. It is also undisputed that he is disabled by that disease from doing any further work as a stonecutter. Whether he is totally disabled by that fact alone must be determined by a consideration of the evidence in the light of this proviso of section 3: 'provided, however, that if it shall be determined that such employee is able to earn wages at another occupation which shall be neither unhealthy nor injurious and such wages do not equal his full wages prior to the date of his disablement, the compensation payable shall be a percentage of full compensation proportionate to the reduction in his earning capacity.' Here there is a conflict in the evidence as to whether petitioner can do some light work of that nature. The medical opinion is unanimous that he can. The petitioner testified that in his present condition he cannot. The...