Palumbo v. U.S. Rubber Co.

• Decision Date: 20 November 1963
• Docket Number: No. 3053,3053
• Citation: 97 R.I. 20,195 A.2d 238
• Parties: Felice A. PALUMBO v. UNITED STATES RUBBER COMPANY. Equity
• Court: Rhode Island Supreme Court

Page 238

195 A.2d 238

97 R.I. 20

Felice A. PALUMBO v. UNITED STATES RUBBER COMPANY.

Equity No. 3053.

Supreme Court of Rhode Island.

Nov. 20, 1963.

Abedon, Michaelson & Stanzler, Providence, for petitioner.

Ambrose W. Carroll, Providence, for respondent.

ROBERTS, Justice.

This is an employee's petition to review a preliminary agreement for compensation seeking payment of certain medical expenses and permission to exceed the maximum amounts prescribed in the statute for the payment of such expenses pursuant to G.L.1956, § 28-33-5.

According to the preliminary agreement petitioner had sustained a back injury on September 3, 1955 and as a result thereof became incapacitated for a third time on November 28, 1960. The record discloses that petitioner entered a hospital for surgery on November 28, 1960; that the preliminary agreement was executed on December 16, 1960; and that surgery was performed on December 19 of that year. Postoperative and urological care were furnished petitioner well into the year 1961. It is not disputed that prior to the filing of this petition on January 11, 1962 respondent employer had paid hospital and medical expenses for petitioner in excess of the statutory limitations set out in § 28-33-5. In the instant petition he seeks to require the employer to pay an amount of approximately $275 for medical services.

After hearing, the trial commissioner entered a decree wherein he found, in substance, that the physicians by whom the services had been performed had failed to give respondent notice of their selection by the employee within fifteen days thereafter as prescribed in § 28-33-8 and had not provided respondent with progress reports as to petitioner's condition at least every two months as therein required. While the trial commissioner found that the physicians had failed to comply with the prescribed notice requirements, he made no express finding as to the necessity for specialized or prolonged medical treatment, a prerequisite to the granting of permission to exceed medical maximums set out in § 28-33-5. The cause is before this court on petitioner's appeal from a decree of the full commission entered December 12, 1962 affirming the decree of the trial commissioner.

The decision of the trial commissioner clearly rests upon his application of the notice requirements set out in § 28-33-8. That section gives an injured employee the right to select a physician of his own choice to furnish him with the medical care and services contemplated in § 28-33-5 and provides that 'No claim for care or treatment by a physician * * * shall be valid and enforceable as against his employer, the employer's insurer or the employee, unless the physician * * * gives written notice of the employee's choice to the employer within fifteen (15) days after the beginning of the services or treatment and shall as often as every two (2) months thereafter while the services or treatment continue * * * present to the employer a signed progress report of the employee's condition * * *. The employee shall not be personally liable to pay any physician * * * where the physician * * * has forfeited the right to be paid by the employer because of noncompliance with this section.' The petitioner urges that the trial commissioner erred in applying the statute to the claim of an employee for medical expenses, contending that it has application only to claims for medical services made by a physician directly upon the employer. In this he relies primarily upon Lambert v. First National Stores, Inc., 85 R.I. 365, 131 A.2d 811, decided by this court in 1957.

This contention requires us to consider the nature of the obligation imposed upon an employer to compensate an injured employee for medical services and treatment. The right of an injured employee to be compensated for his reasonable and necessary medical care and treatment is conferred upon him by the provisions of § 28-33-5 wherein the maximum amounts payable for such compensation are fixed and the commission is authorized to permit the cost of such medical services to exceed the prescribed maximums when prolonged or specialized treatment is shown to be necessary.

Section 28-33-8 confers upon an injured employee no right to additional compensation but only authorizes him to select a physician of his own choice to provide him with the medical services to which he is entitled under the provisions of § 28-33-5. The right of a physician so selected by an employee to claim payment directly from the employer for such services derives from the right of the employee to be compensated as provided in § 28-33-5. This derivative right of the physician to claim payment from the employer is therein made subject, however, to the prescribed requirements as to giving notice to the employer of his selection along with furnishing the employer with progress reports and final bills.

In its decision the full commission noted that the instant petition was not one brought by the employee to be reimbursed for payments made for medical services rendered him but that it 'in effect, is a petition brought in the name of the employee for payment of the outstanding bills of three doctors who treated the petitioner.' The commission went on to...