Saccoccio v. Kaiser Aluminum & Chemical Corp.

• Decision Date: 27 April 1970
• Docket Number: No. 798-A,798-A
• Citation: 264 A.2d 905,107 R.I. 53
• Court: Rhode Island Supreme Court
• Parties: Louis V. SACCOCCIO v. KAISER ALUMINUM & CHEMICAL CORPORATION. ppeal.

Page 905

264 A.2d 905

107 R.I. 53

Louis V. SACCOCCIO v. KAISER ALUMINUM & CHEMICAL CORPORATION.

No. 798-Appeal.

Supreme Court of Rhode Island.

April 27, 1970.

Raul L. Lovett, Providence, for petitioner

Ambrose W. Carroll, Providence, for respondent.

OPINION

JOSLIN, Justice.

The employee filed this original petition for compensation benefits with the Workmen's Compensation Commission on August 29, 1968, after he and his employer failed to reach an agreement in regard to compensation. The trial commissioner found that the employee had sustained a compensable injury and awarded him benefits for total incapacity from August 5, 1968 to October 25, 1968, except for the period from August 7, 1968 to August 27, 1968, and for partial incapacity from and after October 26, 1968. The benefits for the period from August 7 to August 27, 1968 were suspended and forfeited because of the employee's refusal to submit to medical examinations scheduled by the employer for August 7 and August 27, 1968. Both parties appealed. The full commission lifted the penalty imposed by the trial commissioner and affirmed his decree in all other respects. The employer appeals.

The facts may be briefly stated. The employee was employed as a millwright. On July 25, 1968, while lifting an extruder screw on a vector machine he felt a sharp pain in the small of his back. He reported the incident to the plant nurse and on her advice consulted the plant physician who limited him to light duty. He continued at light work until August 2nd, when the employer's establishment closed for its annual two-weeks summer vacation period. A few days after the start of the vacation the employee told the plant physician that his condition was getting worse, that his leg as well as his back was affected, and that he was unable to do any work.

When his condition did not improve the employee consulted an orthopedic surgeon of his own selection and advised him about his earlier injury and the continuing pain, discomfort and limitation of movement he was experiencing. Based upon the case history and the observable symptoms, the orthopedist found a causal relationship between the injury described and the employee's physical limitations and difficulties. His provisional or tentative diagnosis was a lumbosacral strain, and he prescribed analgesics, bed rest, physiotherapy and a back support. When this conservative regime failed to produce improvement, the employee was hospitalized on September 24, 1968. After a myelogram was performed, his injury was rediagnosed as a herniated lumbar disk, and he was placed on bed rest, pelvic traction, medication, and physical therapy. He left the hospital on October 10, 1968 and by October 25, 1968, his condition had improved sufficiently so that his physician discharged him and advised him to seek light work. This is the sum of the material evidence upon which the commission predicated its award of compensation for total and partial incapacity.

The employer challenges the award on several grounds. The first challenge relates to the employee's failure to keep the appointments for the medical examinations arranged ¹ for him by the employer for August 7, 1968, August 27, 1968 and September 24, 1968. The September appointment was with a Providence physician, but the August examinations were scheduled to be made by a physician whose office was located in Fall River, Massachusetts a city about 17 miles from the City of Cranston where the employee resides.

Because the employee failed to keep any of the appointments, the employer invoked § 28-33-38 ² and demanded that the employee's rights to compensation benefits be suspended or forfeited for the period of his refusal. The commission declined to suspend or forfeit. It hinged the right to apply the statutory penalties on whether the request to submit was reasonable, and it found that this employee had not acted unreasonably or wilfully in refusing to submit to the out-of-state examinations ³ or to keep the in-state appointment which by chance fell on the day he was admitted to the hospital.

We agree with the commission that the employee's refusals were excusable, but do not pass upon the reasons it gave for its conclusion. The decisive issue for us is whether an employer who has denied liability may require an injured employee to submit himself to a § 28-33-34 medical examination while the liability question is still pending. We think not.

The precise question is one of first impression for us. Our decisions in related matters in the compensation field suggest, however, that the right to assert otherwise available benefits may be lost to an employer who has either defaulted in his obligation to make payments legally due under the Act or forced his employee to the burden of establishing a compensable injury by reason of his failure to enter into an agreement with regard to compensation. Hingeco Mfg. Co. v. Haglund, 65 R.I. 218, 14 A.2d 233; Bishop v. Frank Morrow Co., 68 R.I. 518, 30 A.2d 110; Proulx v. French Worsted Co., 98 R.I. 114, 199 A.2d 901.

A brief reference to the holdings in the cited cases demonstrates their appositeness. In Hingeco an employer in default of his obligation to make compensation payments legally due was not permitted to invoke the forfeiture provisions of what is now § 28-33-38 against an employee who during the period of the employer's default had refused to submit to a requested medical examination. The Bishop case barred an employer who had not admitted liability for compensation from challenging the reasonableness of the actions of a claimant who, pending a determination of the liability question, had not undergone potentially beneficial operative treatment; Proulx involved an employee's claim for reimbursement for medical expenses. Two of the four justices who sat in that case (Joslin and Roberts, JJ.) said that an employer who denied liability was precluded from defending on the ground that the attending physician and the hospital whose services were rendered while the liability question was open had not complied with the notice and periodic medical progress report provisions of § 28-33-8. ⁴

These decisions, it is to be conceded, do not establish that an employer who denies liability for an injury later established to be work connected is thereby deemed to have waived every right which he might have asserted had he entered into an agreement to pay compensation. They do, however, evidence a tendency to look with disfavor upon an employer, who, despite his own failure either to enter into or to comply with his obligations under an agreement, attempts to invoke and receive affirmative assistance to his own advantage out of the failures of his employee or from the neglect of that employee's hospital or physician to do things required of them under the Act.

At the root of Hingeco was the court's judgment that to permit an employer, purely on his own volition, to deny an injured worker the weekly compensation upon which he was greatly dependent and concurrently to invoke provisions of the Act beneficial to employers would defeat the purposes and intent of the compensation legislation. Hingeco, to be sure, concerned an employer who was in default of his obligations under a preliminary agreement whereas Bishop and Proulx both involved employers who had refused to agree with their employees with respect to compensation and thereby had disclaimed any responsibility under the Act. The underlying rationale of Bishop and Proulx, however, is no different from that in Hingeco. Although unarticulated, the application of the doctrine of waiver in each of those cases turned on the inequity which results where an employer denies the Act's applicability, and yet at the same time claims the benefits of its provisions.

The facts of this case make it a corollary to, and not an extension of, the earlier cases. Just as in each of those cases an employer's inconsistent position barred his resort to advantageous sections of the Act, so too in this case the employer's incompatable points of view preclude him from invoking the forfeiture provisions of § 28-33-38. To hold otherwise would permit this employer to benefit from its employee's...