Lupoli v. Atl. Tubing Co.

• Citation: 111 A. 766
• Decision Date: 29 December 1920
• Docket Number: No. 483.,483.
• Parties: LUPOLI v. ATLANTIC TUBING CO.
• Court: Rhode Island Supreme Court

111 A. 766

LUPOLI

v. ATLANTIC TUBING CO.

No. 483.

Supreme Court of Rhode Island.

Dec. 29, 1920.

Appeal from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

Proceeding by Luigi Lupoli under the Workmen's Compensation Act to obtain compensation for personal injuries, opposed by the Atlantic Tubing Company, the employer. There was an award of compensation, payable in a lump sum, and the employer appeals. Decree modified.

William C. H. Brand and Joseph Veneziale, both of Providence, for petitioner.

William A. Gunning, of Providence, for respondent

STEARNS, J. This is an appeal from the decree of the superior court in proceedings under the Workmen's Compensation Act (Pub. Acts 1912, c. 831). Petitioner, who was an unskilled laborer, while engaged in his regular work in operating a machine, on the 26th of October, 1918, caught his right hand in the machine, and as a result of the accident lost two phalanges of his second finger and part of his first finger. His wages were $18 a week. In accordance with a verbal agreement, respondent has been and still is paying petitioner as compensation under the act the sum of $9 per week, and in addition thereto has paid to him the sum of $9 per week for 12 weeks as special compensation for the loss of a finger.

On March 31, 1920, Lupoli filed in the superior court a petition under the Workmen's Compensation Act in the usual form, in which he alleges the matter in dispute between the parties is the nature and extent of the injuries and the duration of the time of incapacity. Petitioner claims he is unable to follow his former occupation, that of unskilled laborer, because he has no use of his right hand; that his lack of knowledge of the English language is such as to preclude him from filling any clerical position, and his physical condition is such as to preclude him from performing any manual labor; and that therefore he is totally incapacitated permanently. In the papers of the case there is also a petition for commutation of future payments. Section 25, art. 2. Although this latter petition has no file mark of the court thereon, it appears that respondent accepted service of both petitions on said March 31st, and presumably both petitions were filed on the same day. The two petitions were heard together by a justice of the superior court June 2, 1920. The petitioner testified in his own behalf and cross-examination was waived. The respondent then presented the testimony of but one witness, Dr. Jones, who examined petitioner March 1, 1920, at the request of respondent. Petitioner stated that he was still receiving from his employer his weekly compensation under the act; that he had been unable to work since the accident, because his injured hand was too weak; that the doctor who attended him at the time of the accident had operated on the hand; and that he felt some improvement in the hand, but not much.

Dr. Jones testified: That petitioner had lost a portion of some of his fingers on one hand and that the ring finger on the same hand was stiff and more or less useless. There was no injury to the arm. The hand could be improved by an operation, which was not serious, after which it would be four or five weeks before petitioner could use the hand very much again. That in a general way petitioner would have as a laborer a disability in the injured hand of about 50 per cent. The injured hand would not be good for ordinary hard labor, and petitioner would have to do some work where he could use his other hand more and the injured hand to a lesser degree. No question was raised as to the nature of the injury. The sole issue was as to the probable duration of the incapacity to work.

The trial justice ruled that, as there was no evidence before the court that the man could get a job anywhere, and as respondent had not furnished him with work, and had presented no evidence that it could furnish him with work, it followed that petitioner was one of the "odd lot" kind; that the burden was on the employer to procure a job for the man, and, having failed to do so, as far as the general labor market was concerned, on the evidence it was a case of total and permanent disability.

The trial justice did not file his decision in writing with the clerk of the court (article 3, § 6), but on June 11, 1920, by direction of the court, a decree was entered whereby it was adjudged and decreed that petitioner was permanently totally disabled; that he was entitled to receive of respondent for the statutory period of 500 weeks the weekly sum of $9 (less the time elapsed since the accident for which weekly payments had been made); that the payment of a lump sum in lieu of all future weekly payments would be for the best interest of petitioner, who therefor was entitled to receive from respondent $3,175, being the total sum of future payments payable to him in accordance with the act, capitalized at their present value. From this decree respondent appeals, on the ground that the finding that petitioner is permanently totally disabled is without any evidence to support it, is erroneous, and is against the law.

We think the trial...