Pilkanis v. Leesona Corp.

• Citation: 224 A.2d 893,101 R.I. 494
• Decision Date: 16 December 1966
• Docket Number: No. 8,8
• Parties: William PILKANIS v. LEESONA CORPORATION. Appeal
• Court: United States State Supreme Court of Rhode Island

Page 893

224 A.2d 893

101 R.I. 494

William PILKANIS v. LEESONA CORPORATION.

Appeal No. 8.

Supreme Court of Rhode Island.

Dec. 16, 1966.

[101 R.I. 501] Gunning & LaFazia, Raymond A. LaFazia, John F. McDonough, Providence, for petitioner.

Hinckley, Allen, Salisbury & Parsons, Thomas, J. Hogan, Thomas D. Gidley, Providence, for respondent.

OPINION

JOSLIN, Justice.

This petition, although entitled 'Employee's Petition to Review and/or Amend Agreement or Decree Concerning Compensation,' is in reality a petition for specific compensation wherein the employee seeks benefits either under G.L.1956, § 28-33-19(l) as amended, for the complete loss of hearing in his left ear or alternatively, under § 28-33-19(m) as amended, for a percentage loss of hearing. It comes to us on the employee's appeal from a final decree of the full commission affirming a decree of a single commissioner denying and dismissing the petition.

The record is short and the facts undisputed. The petitioner in 1964 sustained a compensable traumatic ear injury and as a result is now unable to communicate in the standard sense or to discriminate between sounds, that is to say, in ordinary conversation the spoken word comes to him as an unintelligible mumble and conveys no meaning to his mind. He can, however, with the aid of earphones and under clinical conditions in a testing booth hear certain pure tones. This impairment is permanent and cannot be corrected by the use of a hearing aid or otherwise.

The initial question is what within the contemplation of the statute ¹ constitutes a 'complete loss of hearing' in one ear. Those words are clearly susceptible of more than a single meaning. Depending on the circumstances, the context and the purposes of their use they may either be given their ordinary and usual meanings or be taken in their absolute and technical sense. An explicit definition appears in a report of an examining physician. He describes a complete loss of hearing as the 'auditory state in which no measurable hearing at any frequency can be elicitated by pure tone testing.' Measured by that or an equivalent standard petitioner's loss of hearing was fixed by one physician at 67 per cent and by another at 38.4 per cent.

If the words, however, are taken relatively rather than absolutely, and in the light of everyday experiences, rather than from the viewpoint of a literal clinician, then this precise means of measuring the extent of a hearing loss in percentiles becomes unacceptable. In this relative context a person, even though he is able to hear loud, pure tones, is completely bereft of his hearing if he is unable to communicate with his fellow man and is denied those other practical and useful benefits generally associated with man's usual and customary wants, needs, and pleasures. This is the standard by which the majority of the courts test entitlement under an insurance contract to the specific benefit payable for a complete or total loss of sight. They hold that the entire sight of an eye is lost, although it is not completely destroyed, if what remains is of no practical use or benefit. International Travelers' Ass'n v. Rogers, Tex.Civ.App., 163 S.W. 421; Tracey v. Standard Accident Ins. Co., 119 Me. 131, 109 A. 490, 9 A.L.R. 521; Pan-American Life Ins. Co. v. Terrell, 5 Cir., 29 F.2d 460; Clark v. Standard Accident Ins. Co., 43 Cal.App.2d 563, 111 P.2d 353, 112 P.2d 298.

In a different but related field we considered words of similar import. Pannone v. John Hancock Mutual Life Ins. Co., 52 R.I. 95, 157 A. 876. We analogize from this case not to establish what the words here mean but to show that such words can have a relative meaning which differs from the literal. There the question was coverage under a clause in a disability insurance policy providing for benefits to an insured who might become 'totally and permanently disabled * * * so as to be continuously and wholly prevented for life from engaging in any occupation or employment for wage * * *.' Holding that an inability to perform each and every one of his former duties was not a necessary precedent to a recovery we said at page 100, 157 A. at p. 877:

'The courts have held quite generally that 'total disability' is not to be construed literally. Inability of the insured to do the greater portion, the substantial part, of his work or duty is total disability, but inability to do some one thing or several things constituting a lesser portion of his work is not total disability.'

The issue in the case before us obviously is which meaning the legislature intended- the the absolute or the relative. Its purpose is clear. It thought not in terms of loud, pure tones, nor of an ability to hear beeps through earphones in the testing booth, nor of an auditory state, but rather was concerned with man's ability to function and fulfill a vital role as a member of society in a workaday world. A legislature so motivated should not and cannot be charged with intending a technical construction which denies specific compensation except in the rare instance where there is an incapacity to hear any one of the approximately 11,000 tones within the hearing range of the human ear. It is far more reasonable to conclude instead that the legislature intended that we give to the words their ordinary, normal and usual meanings.

With a standard thus fashioned, a complete loss of hearing will not necessarily hinge on whether any useful function or benefit in the practical sense inheres in the ear. We said as much in Lozowski v. Nicholson File Co., 92 R.I. 270, 168 A.2d 143, where we held that the employee had sustained a complete loss of hearing, although the testimony was that he 'had had practically a total loss of hearing * * *.' (italics ours)

In adopting the relative rather than the literal approach, we do not distort the plain language of the act under the guise of applying the rule of liberal construction, but rather follow the general rule of construction which, absent a clear evidence of a contrary legislative purpose, gives to the words of a statute their natural and ordinary and not their technical meanings. Broughey v. Mowry Grain Co., 61 R.I. 221, 200 A. 768.

The respondent argues that our decisions in Keyworth v. Atlantic Mills, 42 R.I. 391, ...