Roy v. Great Atlantic & Pac. Tea Co.

• Decision Date: 10 June 1966
• Docket Number: No. 3256,3256
• Citation: 220 A.2d 512,101 R.I. 53
• Court: Rhode Island Supreme Court
• Parties: Wilfred J. ROY v. The GREAT ATLANTIC & PACIFIC TEA COMPANY. Eq.

Page 512

220 A.2d 512

101 R.I. 53

Wilfred J. ROY v. The GREAT ATLANTIC & PACIFIC TEA COMPANY.

Eq. No. 3256.

Supreme Court of Rhode Island.

June 10, 1966.

Reargument Denied June 24, 1966.

Abedon, Michaelson, Stanzler & Biener, Milton Stanzler, Providence, for petitioner.

Boss, Conlan, Keenan & Rice, H. Eliot Rice, Providence, for respondent.

OPINION

PAOLINO, Justice.

This is a petition to review a consent decree amending a preliminary agreement. The cause is here on the respondent's appeal from a decree of the full commission affirming a decree of the trial commissioner.

The essential facts in this cause are discussed in Roy v. Great Atlantic & Pacific Tea Co., R.I., 210 A.2d 125. That case involved two petitions by the employee. They were consolidated and heard together before a trial commissioner on January 2, February 7 and March 6, 1964. The full commission entered a decree on June 17, 1964 affirming the decree of the trial commissioner and on May 14, 1965 we filed our decision denying and dismissing petitioner's appeal in each of the cases.

On April 13, 1964, while those petitions were pending before the commission, the petitioner filed the instant petition alleging that 'On or about October 14, 1963 petitioner suffered a recurrence of the back injury sustained on August 5, 1956, necessitating an operation for a ruptured intervertebral disc causing him to be disabled from October 14, 1963 to January 18, 1964.' On March 20, 1959 a consent decree was entered amending the preliminary agreement entered on January 21, 1957.

The preliminary agreement which is the subject of the instant petition relates to the August 5, 1956 injury and, as amended, describes the nature and location of the injury as 'Back injury.'

This petition was heard before the trial commissioner on May 25, October 6 and October 27, 1964. In addition to the testimony of petitioner and his physician Dr. Donald F. Larkin, a qualified orthopedic surgeon, the evidence includes a copy of a medical report by Dr. Larkin and copies of various agreements and decrees which are referred to in Roy, supra. After the hearing the trial commissioner entered a decision and a decree based thereon, dated November 27, 1964, which contains express findings that petitioner had a return of total incapacity on October 11, 1963 'flowing from and causally connected to the injury of August 5, 1956' and that 'as a result of said return of total incapacity, the petitioner was totally incapacitated from October 11, 1963 until January 18, 1964 at which time he had recovered and was able to return to his regular work and no longer suffering any loss of earning capacity.'

After a hearing on respondent's appeal the full commission, one member dissenting, entered a decision and a final decree based thereon affirming the decree of the trial commissioner.

The respondent has briefed and argued its reason of appeal under four main points. Before considering them we note that respondent was insured by the Travelers Insurance Co. in August 1956 and by the Aetna Casualty & Surety Co. in October 1958. The findings that petitioner was totally incapacitated for work between October 11, 1963 and January 18, 1964 and that such incapacity resulted from a back condition are supported by competent evidence. The ultimate question before us is whether petitioner's incapacity during such period flowed from the August 5, 1956 injury. The answer to this question will determine whether Travelers or Aetna is liable for the benefits to which petitioner is entitled under the act.

We shall first consider respondent's contention under point IV challenging an evidentiary ruling by the trial commissioner. It appears from the transcript that in reply to a hypothetical question put by petitioner's counsel to Dr. Larkin asking his opinion as to the cause of the ruptured disc for which he operated on petitioner in November 1963, the doctor, over respondent's objection, stated that in his opinion the disc that he 'found in 1963 was the result of his original injury as he described it to me in 1956.' The respondent contends that the commission erred in affirming the trial commissioner's ruling allowing the physician for a long period of time, the doctor's answer.

In its reasons of appeal to the full commission respondent did not include a specific reason of appeal attacking the correctness of the trial commissioner's ruling. In the circumstances this contention is not properly before us. On an appeal from a decree of a single commissioner, affirmed by the full commission, this court will review only those matters which were brought by specific reason of appeal to the full commission. Brown 3 Sharpe Mfg. Co. v. Lavoie, 83 R.I. 335, 116 A.2d 181. However, assuming that this challenge is properly before us, we find no prejudicial error since it appears from the doctor's testimony that, having been petitioner's attending physician for a long period oftime, he was fully aware of all the facts on which his opinion was based pertaining to the cause of petitioner's incapacity for work during the period in question. Oliver v. Pettaconsett Construction Co., 36 R.I. 477, 90 A. 764.

We shall consider respondent's contentions under points I and II together. Under point I respondent contends that the decree of the full commission is fatally defective because it does not contain express findings that (1) petitioner's return of incapacity is directly and exclusively referable to his 1956 injury and (2) that there was no intervening original or aggravating cause.

The respondent relies on a statement in Pimental v. S. Rubin, Inc., 92 R.I. 346 at page 350, 168 A.2d 463 at page 465, where the court said:

'Assuming that incapacity for work existed at the time petitioner filed the instant petition, it was incumbent upon him as the moving party not only to prove the existence of such incapacity but to prove as well that his incapacity was directly and exclusively referable to the injury of August 12, 1957. The nature of the proof required necessarily contains an inherent negation, at least by inference, of the likelihood that current incapacity is the result of an intervening original or any aggravating cause. Conversely, if the evidence adduced before the single commissioner raises a question of such an intervening cause, it is possible that inferences may be drawn which tend to militate against a finding that the incapacity is directly and exclusively referable to the injury relied upon.'

That case involved an original petition for compensation. Assuming that the rule stated in Pimental, supra, applies to a hearing on a petition to review we are of the opinion that it has been complied with in the case at bar. See General...