Romano v. B. B. Greenberg Co., 1052-A

Decision Date26 January 1971
Docket NumberNo. 1052-A,1052-A
Citation108 R.I. 132,273 A.2d 315
PartiesJoseph ROMANO v. B. B. GREENBERG CO. ppeal.
CourtRhode Island Supreme Court

KELLEHER, Justice.

This is an employee's appeal from a decree of the Workmen's Compensation Commission dismissing his petition for compensation benefits without prejudice.

The record shows that Romano has been employed as a full-time clerical employee of the United States Pose Office for approximately eight years. In January 1969, he began to 'moonlight' and work part time for respondent jewelry manufacturer. He worked about 24 hours weekly at respondent's plant where he spent most of his time separating buckles which had been molded in a continuous strip. In order to perform this operation, Romano would place a strip of buckles along the edge of a table and then strike the buckles with the palm of his right hand. Sometime in August 1969, he began to experience a numbness and pain in the thumb and several fingers of his right hand. He consulted with the plant nurse who in turn referred him to an orthopedic surgeon.

The surgeon testified before the trial commissioner. He described Romano's condition as a carpal tunnel syndrome which was directly related to his job with respondent. While the employee had to give up his second job, he has continued to give up his second job, he had continued to work full-time with the postal service. His federal pay employee at the rate of $1.90 an hour. The salary for the second job averaged about $46 weekly.

The sole issue in this appeal is whether, as employee contends, the commission erred in computing his average weekly wage because of its failure to use the combined earnings from the two jobs he was performing at the time he was forced to leave respondent's employment and its refusal to use a new formula for determining the average weekly wage which had been enacted by the Legislature after employee quit his second job.

The commission rested its denial of the present petition on the oft-repeated rule that an employee, who even though he has sustained a physical injury, cannot receive weekly compensation benefits unless and until he has demonstrated a loss of earning capacity. Coletta v. State, R.I., 263 A.2d 681; Geigy Chemical Corp. v. Zuckerman, R.I., 261 A.2d 844; Peloso, Inc. v. Peloso, 103 R.I. 294, 237 A.2d 320. The commission determined that employee's average weekly wage at the time he was disabled was $76. It reached this figure by multiplying his hourly pay of $1.90 by the figure 40 as provided in G.L.1956 (1968 Reenactment) § 28-33-20. 1 Since Romano's postinjury earnings of $160 were substantially greater than the pre-injury earnings he was receiving from his second job, the commission quite properly denied his petition. When computing an injured employee's post-injury earnings for the purpose of determining whether he is still totally incapacitated, all of his post-injury wages and earnings are to be considered regardless of whether they were earned in the employment in which he was injured. Stillwater Worsted Mills, Inc. v. Beal, 89 R.I. 34, 150 A.2d 704.

In asking that his average weekly wage be calculated on the basis of both his post office pay and his jewelry plant salary, employee has either ignored or overlooked our holding made several years ago in DeAsis v. Fram Corp., 78 R.I. 249, 81 A.2d 280, where we ruled that when an employee is working two jobs and he is injured while on one job, his average weekly wage is not to be based on his combined earnings but it is to be determined solely on the wages received from the employer in whose service he was injured. 2 The De Asis case is dispositive of this phase of employee's appeal.

Notwithstanding the correctness of the commission's determination of his average weekly wage, the employee seeks to take advantage of an act passed by the Legislature during its 1969 session. This act, P.L.1969, chap. 145 was enacted into law on May 14, 1969 but it did not become effective until September 1, 1969. It substantially revises § 28-33-20 by providing that where an injured employee has worked for more than one employer during the 13 week period immediately preceding his injury, his average weekly wage shall be calculated on the basis of the wages earned from all employers during the involved period.

While this statute was not in effect at the time of the employee's injury, it was operative when he appeared before the trial commissioner. The statute was first mentioned in this cause when the full commission in its decision alluded to its passage but held it to be inapplicable to employee's petition, since it became effective after employee's disability had occurred. Now, before us, employee argues that the new act is procedural in nature and it should have been used by the commission when it established his average weekly wage. The employer, of course, maintains that the amendment is substantive and cannot be applied retroactively.

In this jurisdiction, an injured worker's right to compensation and the determination of the rate of compensation to be paid him are controlled by the statutory provisions in effect at the time he becomes incapacitated. Sherry v. Crescent Co., 101 R.I. 703, 226 A.2d 819; Ludovici v. American Screw Co., 99 R.I. 747, 210 A.2d 648. Ordinarily, if a newly enacted statute is substantive law, it will have a prospective effect only and will not affect a pending action. Should the legislation be considered procedural, it will be deemed to operate retroactively and will be applied to a cause of action which arose prior to the passage of the act. See Berditch v. James Hill Mfg. Co., 85 R.I. 69, 125 A.2d 204; Gomes v. John J. Orr & Son, 78 R.I. 96, 79 A.2d 618; Vick v. Aubin, 73 R.I. 508, 58 A.2d 109.

While there is no precise definition of either term, it is generally agreed that a substantive law creates, defines and regulates rights while a procedural law prescribes the methods of enforcing such rights or obtaining redress. Ware...

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