Moniz v. F. D. McGinn, Inc., 10

• Decision Date: 21 June 1967
• Docket Number: No. 10,10
• Parties: Anthony MONIZ v. F.D. McGINN, INC. Appeal
• Court: Rhode Island Supreme Court

Page 837

230 A.2d 837

102 R.I. 394

Anthony MONIZ v. F.D. McGINN, INC.

Appeal No. 10.

Supreme Court of Rhode Island.

June 21, 1967.

[102 R.I. 397] Abraham Goldstein, Providence, for petitioner.

Charles H. Anderson, Providence, for respondent.

OPINION

JOSLIN, Justice.

This employee's petition was filed on a form provided by the workmen's compensation commission. It is captioned "Employee's Petition to Review and/or Amend Agreement or Decree Concerning Compensation" and it seeks to amend or modify a June 12, 1963, agreement between the employer and the employee wherein it was agreed that the employee should, in addition to all other payments, be compensated "at the rate of $27.00 per week for a period of 150 week[s] for the loss of Left leg below knee ***." On the employee's appeal from an adverse decree of a trial commissioner the full commission did not reach the merits, but instead, finding that it lacked jurisdiction, denied and dismissed the petition without prejudice. The case is here on the employee's appeal from that decree.

A brief recital of undisputed facts will suffice to put the case in perspective. On June 22, 1962, the employee, a truck driver employed by respondent, fractured his left ankle when he fell to the ground from a fork lift truck. Thereafter, on May 27, 1963, he submitted to necessary surgery flowing from the earlier injury and his leg was amputated five inches below the knee. He has been paid for either total or partial incapacity since the date of his injury and has in addition received a payment of $27 for each of the 150 weeks which § 28-33-19(e) ¹ fixes as the duration of the specific compensation provided for the loss by severance of a foot at or above the ankle.

In this proceeding, the petitioner asks for a proportionate part of the difference between the 150 weeks of specific compensation which he received for the loss of his foot and the 300 weeks of such compensation which he says would have been his entitlement under § 28-33-19(a) ² had his leg been severed at or above the knee. He relies upon § 28-33-19(n)1 which provides in pertinent part that an employee who sustains a partial loss by severance for any of the injuries specified in paragraphs (a) through (l) of § 28-33-19 shall be paid proportionate benefits "*** for such period of time as the partial loss by severance bears to the total loss by severance."

The employee's contentions were considered and rejected by the trial commissioner. On review the full commission, instead of reaching the merits, rejected the appeal on jurisdictional grounds. It found that the act neither authorized a claim for specific compensation to be resolved on a petition for review nor permitted an agreement for the payment of the benefits for specific compensation to be modified or amended upon such a petition.

Faced with that decision, the employee had two courses available. Since the full commission's decree was "without prejudice," he could have accepted the commission's suggestion ³ and instituted a new action under a different section of the act. Alternatively, he could have challenged the commission's finding that it lacked jurisdiction. He elected the latter course. He does not, however, directly challenge the ruling on jurisdiction. Instead, apparently conceding that the relief he seeks is inappropriate to a petition for review, he contends that the commission should have been liberal instead of technical, and that it should have looked to the substance of his petition rather than to its form. This is the approach of Proulx v. French Worsted Co., 98 R.I. 114, 199 A.2d 901; Esposito v. Walsh-Kaiser Co., 74 R.I. 31, 58 A.2d 402, and Lopes v. B.B. & R. Knight, Inc., 50 R.I. 16, 144 A. 439. The petitioner urges that a similar approach, if followed here, would have caused the commission to ignore the label which his ...