Podborski v. William H. Haskell Mfg. Co.

• Decision Date: 26 July 1971
• Docket Number: No. 1263-A,1263-A
• Citation: 109 R.I. 1,279 A.2d 914
• Parties: Edward F. PODBORSKI v. WILLIAM H. HASKELL MANUFACTURING COMPANY. ppeal.
• Court: Rhode Island Supreme Court

Page 914

279 A.2d 914

109 R.I. 1

Edward F. PODBORSKI v. WILLIAM H. HASKELL MANUFACTURING COMPANY.

No. 1263-Appeal.

Supreme Court of Rhode Island.

July 26, 1971.

Abedon, Stanzler, Michaelson & Biener, Richard Skolnik, Providence, for petitioner.

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

OPINION

PAOLINO, Justice.

This is an employee's original petition for benefits under the Workmen's Compensation Act. The case is before this court on the employee's appeal from the decree of the full commission which affirmed the decree of the trial commissioner.

After a hearing on the employee's petition the trial commissioner made the following findings of fact: (1) in September 1969, petitioner sustained compensable injuries while in the employ of respondent, (2) on account of such injuries petitioner was totally disabled from March 19, 1970 through September 8, 1970, (3) beginning September 9, 1970, petitioner was only partially incapacitated and was able to do many forms of suitable work, such as jewelry bench hand for an eight-hour day, forty-hour week and to earn the sum of not less than $64 (minimum wage law), (4) respondent had knowledge of such injuries, and (5) petitioner's average weekly wage before the injuries involved in this case was $90.32.

On the basis of such findings the trial commissioner awarded petitioner benefits for total incapacity of $60.22 per week from March 19, 1970 through September 8, 1970, and for partial incapacity from September 9, 1970 at the rate of 60 per cent of the difference between his average weekly wage of $90.32 and $64 or $15.79, with the proviso that if petitioner obtained gainful employment, ¹ he should notify respondent's insurance carrier immediately. He also awarded petitioner other benefits under the Act, including a fee for legal services performed by his counsel before the trial commissioner. A decree ² incorporating the trial commissioner's findings and orders was subsequently entered. Both parties appealed to the full commission.

In its decision the full commission admitted that § 28-33-18, as amended by P.L.1969, ch. 146, does not contain 'provisions specifically allowing the commission to establish a partial earning capacity of the employee.' However, after discussing the decision of this court in Saccoccio v. Kaiser Aluminum & Chemical Corp., R.I., 264 A.2d 905 ³ and Wareham v. United States Rubber Co., 73 R.I. 207, 54 A.2d 372, the commission held it had 'the inherent right' to establish an earning capacity for a partially incapacitated employee. The full commission affirmed the decree of the trial commissioner and, since petitioner was successful in defending respondent's appeal, it ordered respondent to pay to petitioner a fee for legal services performed by his counsel before it. A decree incorporating the decision of the full commission was then entered. The case is before us solely on petitioner's appeal from such decree.

The petitioner contends here, as he did before the commission, that after September 1, 1969, the Workmen's Compensation Commission had no power to establish an earning capacity for a partially incapacitated employee because that power, which had been written into G.L.1956, § 28-33-18 since 1950, had been deleted therefrom by the enactment of P.L.1969, ch. 146. We agree with petitioner's position and, therefore reverse the decree of the full commission with respect to this issue.

The parties agree that the resolution of the question raised by this appeal depends solely upon the meaning of § 28-33-18, as amended by P.L.1969, ch. 146, which became effective on September 1, 1969. In order to understand the significance of such amendment it may be helpful, as the parties themselves indicate in their respective briefs, to review briefly the history of the section of the Act dealing with weekly compensation for partial incapacity.

At the time of the enactment of the Workmen's Compensation Act in 1912 (P.L.1912, ch. 831), the section providing for partial incapacity was art. II, sec. 11, which read as follows:

'While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to one-half the difference between his average weekly wages, earnings, or salary, before the injury and the average weekly wages, earnings or salary which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury.'

Except for changes in the rate paid for partial incapacity and the duration of benefits, sec. 11 remained the same until June 1, 1950 (P.L.1950, ch. 2628), when art. II, sec. 11, was amended by changing 'which he is able to earn thereafter' in the first sentence, to 'which he earns thereafter' and also by adding a proviso, to which we have referred at times as 'the first proviso,' the pertinent part of which reads as follows:

'* * * provided, however, if, after his injury, the employee is unable to obtain any work to determine his earning capacity or prove the amount of his loss of earning capacity with reasonable definiteness, then the director of labor * * * (amended by P.L.1954, ch. 3297, art. II, sec. 11, to read Workmen's Compensation Commission) shall have the power in the interest of justice to fix the dollar value of the weekly earning capacity which said employee has * * *.'

The 1956 General Laws redesignated the entire section on partial incapacity as § 28-33-18, but the first proviso quoted above remained substantially unchanged from 1950 to 1969. On September 1, 1969, P.L.1969, ch. 146, became effective. This chapter was part of a very broad revamping of the Workmen's Compensation Act, which became effective on September 1, 1969. Public Laws 1969, ch. 146, deleted from § 28-33-18 the first proviso. It also deleted the second proviso which provided for the payment of maximum compensation when a partially incapacitated employee made a bona fide attempt without success to find suitable work, see Davol Rubber Co. v. Lafoe, R.I., 277 A.2d 128; and it changed the rate paid for partial and the limits on partial. Section 28-33-18, as amended by P.L.1969, ch. 146, now reads as follows:

'Weekly compensation for partial incapacity.-While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employee a weekly compensation equal to sixty per cent (60%) of the difference between his average weekly wages, earnings or salary before the injury and the weekly wages, earnings or salary which he earns thereafter, but not more than the maximum weekly compensation rate for total incapacity as set forth in § 28-33-17. In the event partial compensation is paid, in no case shall the amount of such compensation be more than thirty-two thousand five hundred dollars ($32,500) and where total disability and partial disability are paid for the same injury, the total amount in combined benefits shall not exceed thirty-two thousand five hundred dollars ($32,500).'

In sustaining the decree of the trial commissioner, the full commission in its decision indicated that it relied on Saccoccio and Wareham, both supra. Saccoccio is not in point, since it involved the applicability of § 28-33-18, as it existed immediately prior to the 1969 amendment (P.L.1968, ch. 92), which at that time, expressly allowed the commission to fix an earning capacity.

As we read its decision, the commission was relying on Wareham v. United States Rubber Co., supra, which was decided in 1947 and involved an injury occurring in 1946. In Wareham the employee sustained a work-connected injury as a result of which he was totally incapacitated for a time, but at the hearing on the employee's petition for compensation in the Superior Court (where such petitions were then heard), the trial justice found that the employee was only partially incapacitated at the time of the hearing. He awarded the employee compensation for total disability during the period of his total incapacity for work and maximum partial incapacity payments thereafter. The trial justice indicated that he was making such an award "* * * on the basis of partial incapacity, such amount to be diminished so far as may be by the amounts earned, in accordance with the provisions of the Workmen's Compensation Act * * *.'

One of the grounds of the employer's appeal in Wareham was that the trial justice erred in awarding compensation benefits 'on the basis of partial incapacity.' The partial compensation statute then in force, P.L.1942, ch. 1246, ⁴ did not expressly empower the Superior Court to establish the earning capacity of a partially incapacitated employee. This court said in Wareham, supra, 73 R.I. at 212, 54 A.2d at 374:

'From a practical viewpoint it was correct, therefore, for the trial justice to find that petitioner was only partially disabled, because 'he is now capable of doing light work."

After considering certain practical difficulties present in that case, this court remitted the case to the Superior Court to enable petitioner to establish the extent of his diminished earning capacity in accordance with Dorfman v. Rosenthal Ackerman Millinery Co., 64 R.I. 498, 13 A.2d 268.

After the decision in Wareham, the section providing for weekly compensation for partial incapacity was amended several times ⁵ and in each instance authority to establish an earning capacity for partially incapacitated employees was provided therein. Indeed, we believe, as the petitioner points out in his brief, that P.L.1954, ch. 3297, art. II, sec. 11 and P.L.1956, ch....