Nardolillo v. Big G Supermarket, Inc.
| Decision Date | 11 July 1973 |
| Docket Number | No. 1929-A,1929-A |
| Citation | 306 A.2d 844,111 R.I. 751 |
| Parties | Frances M. NARDOLILLO v. The BIG G SUPERMARKET, INC. ppeal. |
| Court | Rhode Island Supreme Court |
This is an employee's original petition for benefits under the Workmen's Compensation Act. General Laws 1956 (1968 Reenactment) § 28-29-1. After hearing, the trial commissioner found that the petitioner, as of February 24, 1972, became totally incapacitated as a result of an injury sustained while employed by the respondent on January 15, 1972. The trial commissioner entered a decree ordering the respondent to pay the petitioner compensation for total incapacity from February 24, 1972, to March 7, 1972, and compensation for partial incapacity from March 7, 1972, at a rate not to exceed the maximum amount. Upon the respondent's appeal, the full commission affirmed the findings and orders contained in the decree of the trial commissioner. The respondent is now prosecuting in this court an appeal from the decree of the full commission.
The respondent is not challenging the propriety of the findings as to total and partial incapacity. Rather, it raises a single question which, in our opinion, is dispositive of the issue here raised. The respondent is contending that an employee who refuses to accept beneficial rehabilitative employment which he is capable of performing is not entitled to partial compensation, and consequently § 28-33-18, as amended, has no application in this case.
The respondent relies principally upon the language in our prior decisions, particularly School House Candy Co. v. Ferrucci, 88 R.I. 109, 113, 143 A.2d 304, 306 (1958), which imposed a '* * * duty * * * (on the) employee to attempt in good faith to perform the specific work which has been offered her by the employer and which the commission has found she is able to do.' See also Narragansett Hotel, Inc. v. Mallozzi, 81 R.I. 389, 103 A.2d 355 (1954); Interlaken Mills v. Poling, 81 R.I. 309, 102 A.2d 710 (1954); Tool & Findings Co. v. Duffy, 81 R.I. 61, 98 A.2d 849 (1953). Each of those cases arose in the context of the Act before its substantial revision in 1969.
Prior to the 1969 amendments, § 29-33-18 provided a rather complex system for determination of partial benefits. The amount of the partial weekly compensation was computed as 60 per cent of the difference between the employee's average weekly wages, earnings, or salary before the injury and the amount he was able to earn weekly after the injury, not to exceed $22. However, two provisos supplemented this formula. The first provided that if the employee was unable to obtain work after the injury, the commission was empowered to fix the dollar value of the employee's weekly earning capacity in order to compute the amount to be paid as partial compensation. The second proviso required payment of compensation for total incapacity where the employee demonstrated a bona fide effort without success to find work he was able to perform, and the employer was unable to demonstrate that he was able to provide such work or that suitable work was available elsewhere. Both provisos require difficult factual determinations by the trial commissioner.
Experience under this provision apparently demonstrated that many employers regarded a partially incapacitated employee as a bad risk and, therefore, refused to hire him. Im an effort to remedy some of the difficulties which arose under § 28-33-18 and to crete a more equitable approach, that section was changed substantially in 1969. Now that section simply provides that partial weekly compensation shall be 60 per cent of the difference between the average weekly pre-injury wages, earnings, or salary and the weekly earnings after the injury. Both provisos were eliminated. If a partially incapacitated employee has not returned to work, his post-injury average weekly compensation is zero.
We have held that the amendment strips the commission of any authority to fix an earning capacity for a partially incapacitated employee who has not actually worked since his injury. Podborski v. William H. Haskell Mfg. Co., 109 R.I. 1, 9-10, 279 A.2d 914, 918 (1971). It is the clear intent of the Legislature, we said in Podborski, that a partially disabled employee who has not returned to gainful employment as a result of work-connected injuries receive the same compensation as is payable for full incapacity. Furthermore, the 1969 amendment has eliminated the bona fide search for suitable work requirement of the second proviso. Desjardin v. Miller Electric Co., 110 R.I. 184, 185, 291 A.2d 420, 421 (1972); Davol Rubber Co. v. Lafoe,...
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...are casualties of our industrial world by making compensation payments part of the cost of production. Nardolillo v. Big G Supermarket, Inc., 111 R.I. 751, 755, 306 A.2d 844, 847 (1973); Jillson v. Ross, 38 R.I. 145, 149, 94 A. 717, 717 (1915). The employer has the burden of caring for the ......
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