Peloso v. Peloso, Inc.

• Decision Date: 13 July 1970
• Docket Number: No. 904-A,904-A
• Citation: 107 R.I. 365,267 A.2d 717
• Parties: George PELOSO v. PELOSO, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 717

267 A.2d 717

107 R.I. 365

George PELOSO v. PELOSO, INC.

No. 904-Appeal.

Supreme Court of Rhode Island.

July 13, 1970.

Gunning & LaFazia, Raymond A. LaFazia, V. James Santaniello, Providence, for petitioner

Keenan, Rice, Dolan & Reardon, H. Eliot Rice, Providence, for respondent.

OPINION

KELLEHER, Justice.

This is an employee's petition to review a preliminary agreement entered into between him and his employer and a final decree of the Workmen's Compensation Commission. The petition alleges that the employee is now partially incapacitated; that the agreement is erroneous because it misdescribes his injuries and fails to set forth his correct average weekly wage; and that he is entitled to specific compensation payments. When the petition came to be heard before the trial commissioner, it was amended to include a further allegation that the employee's present salary was less than the average weekly wages he was receiving at the time of his injury. At the same hearing, the employee withdrew his request for specific compensation. The trial commissioner entered a decree which held that the employee was partially incapacitated, and ordered the payment of compensation benefits. Both parties took an appeal to the full commission. The full commission, with one commissioner dissenting, sustained the employer's appeal, denied the employee's appeal, and a decree was entered denying and dismissing the petition. The case is before us on the employee's appeal from the commission's decree.

The appeal marks the second time ¹ that this employee has been before this court contesting the denial to him of compensation benefits for work-related injuries. The facts relevant to the incident which caused the employee's injuries can be found in Peloso, Inc. v. Peloso, 103 R.I. 294, 237 A.2d 320. There George described himself as a stockholder in a family business. He worked in the business as a rigger. This was a job which played an important part in the corporation activities since it specialized in the interstate transportation of heavy cargo. On September 22, 1965, a crane boom on which George was working became loose, swung out of control and pinned him against the cab. As a result of this mishap, George's trachea was ruptured and his ribs fractured. He also sustained severe contusions on his shoulders. The employee was hospitalized for approximately two weeks. Because of his injuries, George could no longer work as a rigger. He switched jobs with his father. He took over the work in the office while his father became the corporation's man in the field handling the on-the-spot rigging chores. George was in telephone communication with his father instructing him as to rigging techniques to use when various problems arose. During this entire period, George continued to receive his regular weekly salary of $131.10. The commission, upon its consideration of a petition to review filed by the employer, suspended the payment of compensation benefits to George. We upheld the suspension and held that the evidence sustained the commission's findings that the postinjury money received by George was earnings, not a gratuity. Accordingly, we affirmed the commission's finding that george had regained his earning capacity.

In the first Peloso case, this court recognized that it was conceivable for an injured employee to return to work for his employer and receive a weekly payment of money labeled as salary, a portion of which was intended as remuneration for services rendered and the remainder intended as a pure gratuity given to the employee for some altruistic purpose completely unrelated to the work done or the services performed. In such an instance, we said, the total amount received does not accurately mirror the employee's earning capacity. As a consequence of these observations, we held in Peloso, supra, that where an employee claims to be the beneficiary of a gift of money which may have been described as a salary he, like any other donee, has the burden of showing that the money he received was a gift either in whole or in part.

The opinion in Peloso was published on January 17, 1968. The instant petition to review was executed on June 28, 1968, and filed with the commission on July 1, 1968. While the petition contains various allegations which might warrant some type of relief, the main thrust of George's petition and the hearing before the trial commissioner is an attempt by the employee to follow the guideposts set forth in our first opinion and show that one-half of the weekly amount he has received from Peloso, Inc. is a gratuity and thereby demonstrates a consequent reduction in his earning capacity.

It was obvious from the hearings held in October 1968 on the instant petition, as it was when hearings were held on the employer's petition to review, that Peloso, Inc. is but a nominal party to the proceedings. The real parties in interest in this litigation are George and The Travelers Insurance Company, the corporation's compensation carrier. There were but two witnesses who appeared before the trial commissioner in support of this petition. They were George and a neurologist. The neurologist said that he had treated George for a contusion of the left brachial plexus and a neck injury. This witness also testified that his patient could not return to the type of work he had been doing before he was injured.

George then testified. He attempted to show that, although the corporate records disclosed he was receiving $150 a week, only $75 of that amount constitutes earnings. He stated that the other $75 is given to him solely because of the filial relationship between his father, the corporation's president, and himself. George receives two weekly checks from the corporation. One is for $75. The other check is the net figure which is arrived at after the usual payroll deductions have been made from the $75 figure. In cross-examination, George testified that he has driven the corporation trucks around the company's premises and parked them in different locations on the property. He also conceded that he still answers the office phone, quotes prices, gives advice on rigging problems, dispatches trucks and occasionally travels to the scene of some of the loading and unloading operations where he supervises and directs the efforts of other employees. George testified that the dual system of checks was inaugurated in late August 1968-about a month after he had filed his petition to review. The record also shows that he has been receiving $150 a week since January 1966. This represents an increase of $18.90 over the weekly salary George was receiving at the time he was injured. ² George also told the commission that he was in error when he testified on the first petition to review. He is not a stockholder. His father had never transferred the stock to him. George also corrected the earlier record by saying that his father owns all of the corporation's stock.

The majority of the commission in their decision alluded to the earlier Peloso case and observed that it was the employee's burden to show that a portion of the weekly payments he received was a gratuity. They then went on to say that the mere...