Mancini v. Superior Court

• Decision Date: 20 July 1951
• Docket Number: No. 945,945
• Citation: 82 A.2d 390,78 R.I. 373
• Parties: . M. P. Supreme Court of Rhode Island
• Court: Rhode Island Supreme Court

Page 390

82 A.2d 390

78 R.I. 373

MANCINI v. SUPERIOR COURT et al.

M. P. No. 945.

Supreme Court of Rhode Island.

July 20, 1951.

Aram A. Arabian, Providence, for petitioner.

Hinckley, Allen, Salisbury & Parsons and S. Everett Wilkins, Thomas J. Hogan, Joseph H. Gainer, Jr., Providence, for respondents.

CAPOTOSTO, Justice.

This is a petition for certiorari to quash the record of a decree entered in the superior court in a workmen's compensation case, General Laws 1938, chapter 300, hereinafter called the act.

The litigation between the parties has been the subject of previous opinions by this court. See George A. Fuller Co. v. Mancini, 73 R.I. 178, 54 A.2d 392 and Mancini v. Superior Court, R.I., 75 A.2d 300. In the peculiar circumstances now confronting us we deem it advisable to state the course of such litigation up to the time of the hearing on the merits of the present petition in this court.

It is undisputed that on April 15, 1943 petitioner suffered an injury by accident arising out of and in the course of his employment with the George A. Fuller Company. Thereafter the parties entered into a preliminary agreement on the basis of total incapacity, which agreement was duly approved by the director of labor. On June 12, 1945 the employer filed a petition for review under art. III, § 13, on the ground that the employee was no longer incapacitated. Upon hearing that petition on appeal from a decision by the director of labor a justice of the superior court found that the employee was suffering from a ruptured intervertebral disc; that he was still totally incapacitated by such injury; and that within sixty days after the entry of a decree in accordance with his decision the employee should submit to an operation for his then existing condition. A decree was accordingly entered on August 6, 1946.

Since the validity of that decree is the basic issue between the parties in the instant case we quote in full the finding and order of the trial justice as they appear therein. After referring to the abovementioned rescript the decree reads:

'* * * the Court finds:

'1. That it is reasonable to require the respondent to submit within sixty days of the entry of this decree to an operation for the removal of an intervertebral disc; the operation to be performed by a surgeon of recognized experience and skill in that particular branch of surgery; the hospital and medical expenses to be borne by the petitioners and compensation to be paid through a reasonable period of convalescence

'Whereupon It Is Ordered, Adjudged and Decreed

'That unless the respondent submits to the above operation under the above conditions his compensation shall terminate upon the sixtieth day following the date of this decree; but if he does so submit his compensation, hospital and medical expenses shall be paid as above provided.'

The employee duly filed a claim of appeal from the entry of that decree but he failed to perfect his appeal in accordance with art. III, § 7, of the act. The employer thereupon moved to dismiss the claim of appeal, which motion was heard and granted by a justice of the superior court on January 27, 1947, and a decree to that effect was entered. Thereafter the employee duly appealed to this court where, after hearing, the decree of the superior court was affirmed for the reasons set forth in George A. Fuller Co. v. Mancini, supra.

On December 4, 1949 the employee instituted the present proceedings in this court alleging in his petition for certiorari that the finding and order in the decree of August 6, 1946 were illegal, unlawful and void. Upon consideration of the petition we issued a citation to the parties directing the petitioner to show cause why we should exercise our discretion by issuing the writ. Following a hearing on that narrow question we ordered a writ of certiorari to issue for the reasons therein stated. See Mancini v. Superior Court, supra. The pertinent records were thereafter transferred to this court thus raising the questions now before us.

Petitioner contends that since he was found to be totally incapacitated the trial justice acted without or in excess of jurisdiction in terminating his compensation as provided in the decree of August 6, 1946. Respondents refute that contention on the following grounds: First, petitioner having failed to perfect his claim of appeal in accordance with the act, the decree in question became final and cannot be reviewed by certiorari as the act impliedly excludes such review because of the express provisions for appeal therein prescribed. Secondly, 'the petitioner has in fact a method of relief which he has used by filing a petition at the Labor Department for the relief which he is presently seeking in the case at bar.' Thirdly, petitioner is bound to use every reasonable means to eliminate the cause of his incapacity, and as the trial justice found on evidence that it was reasonable to require him to submit to an operation, that finding was conclusive by force of the act and numerous decisions of this court.

Respondents' first contention to the effect that the act denies this court the power to exercise its discretion and to order a writ of certiorari to issue for the purpose of reviewing some unusual situation in a case falling within the purview of that statute is the same contention that was urged by them in Mancini v. Superior Court, supra. If the legislature had any such intention we think it should have expressed itself in explicit and unambiguous terms. There is nothing in the act, either in express language or by necessary implication, to support respondents' contention. Therefore in the case just above cited we ordered the present writ to issue in the exercise of our general revisory and supervisory powers.

Respondents' second contention above quoted combines a statement of law and an assertion of fact. In effect they urge first, that the petitioner is not entitled to prevail in the instant case because he has an adequate remedy by petition for relief to the director of labor; and secondly, that he had actually filed such a petition prior to the bringing of these proceedings for certiorari. Petitioner, on the other hand, argues that so long as the decree in question remains in force he is stalemated in prosecuting a petition for relief, which he admits filing with the director of labor, and that he instituted the present proceedings to remove the impediment of the decree so that he might obtain relief in the peculiar circumstances.

We cannot agree with respondents that in the existing circumstances petitioner may obtain from the director of labor 'the relief which he is presently seeking in the case at bar.' The decree under consideration is a final order of the superior court terminating petitioner's right to compensation upon noncompliance with its terms. Unless modified or annulled it is binding on every one. In any other proceeding for compensation to which the decree applied all persons would be constrained to give full effect to its terms. The relief presently sought by the petitioner is the removal of that obstacle to the prosecution by him of such further proceedings for compensation as he believes himself entitled to under the act. In such a situation we find no basis for respondents' contention that the present petition should be denied and dismissed because petitioner has an adequate remedy through a petition to the director of labor.

We now come to the real questions in this case. Petitioner contends that the decree under consideration is illegal and therefore void on the following grounds: first, it orders that 'compensation shall terminate' unless he submits to a certain surgical operation; secondly, that it unduly limits his right to compensation following the operation; and thirdly, that it compels him to submit to a dangerous surgical operation which he is not required to undergo by any express or implied provision of the act. (italics ours)

The first ground of error urged by petitioner must be sustained in view of the unqualified language in the decree which orders compensation to 'terminate' unless he submits to the operation therein specified. In the absence of qualification, either directly or by context, the verb 'terminate' means 'To put an end to; to make to cease; to end.' Webster's New International Dictionary (2d Ed.) p. 2605. So long as causal connection has been found to exist between accident and incapacity, compensation can only 'terminate,' in the strict sense of that word, as provided in the act. Reading the part of the decree under consideration as written it was error to 'terminate' the employee's compensation in the circumstances of record. Even if the real intention of the trial justice was merely to suspend compensation until the employee complied with the condition set forth in the decree, the employee would be barred from bringing any other proceeding in the matter as long as the decree remains in its present form.

There is also merit in petitioner's second ground of error to the effect that the decree unwarrantedly and unjustly restricted his compensation 'through a reasonable period of convalescence' if he submitted to the operation. The ordinary meaning of the word 'convalescence' is 'Recovery * * * the time between the subsidence of a disease and complete restoration to health.' Webster's New International Dictionary (2d Ed.) p. 581. It is difficult for us to understand how it can be determined in advance and with reasonable certainty that a proposed surgical operation, especially if it is of a serious nature, will result in the complete cure of an employee's impaired physical condition so that thereafter he will be capable of doing his usual work. Conceivably the operation might not produce the expected result or it might even aggravate the employee's impaired physical condition and resulting incapacity to work, in which case he would be entitled to relief in accordance with ...