Thompson v. Coats & Clark, Inc.

• Decision Date: 10 March 1969
• Docket Number: No. 464-A,464-A
• Citation: 251 A.2d 403,105 R.I. 214
• Court: Rhode Island Supreme Court
• Parties: Maurice J. THOMPSON v. COATS & CLARK, INC. ppeal.

Page 403

251 A.2d 403

105 R.I. 214

Maurice J. THOMPSON v. COATS & CLARK, INC.

No. 464-Appeal.

Supreme Court of Rhode Island.

March 10, 1969.

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

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

OPINION

POWERS, Justice.

This is an employee's petition to review a compensation agreement, predicated on the employee's allegation that his incapacity for work had increased or returned. After a hearing thereon said petition was denied and dismissed by a single commissioner on the ground that said petition had not been brought within ten years of the last payment of compensation, as required by G.L.1956, § 28-35-45. ¹

From the decree accordingly entered, petitioner seasonably appealed to the full commission which, after an independent examination of the record, affirmed the decree of the single commissioner. From that decree, petitioner seasonably appealed to this court.

The record establishes that on August 15, 1952, petitioner, while in the employ of respondent, sustained a work-connected injury to his right leg which injury resulted in amputation of the leg at mid-thigh. Subsequently, September 22, 1952, a preliminary agreement was approved by the director of labor, pursuant to the provisions of now § 28-35-3. It provided for weekly compensation benefits for total disability based on an average weekly wage of $53.40 commencing August 18, 1952; for reasonable expenses of hospitalization and medical services, as well as for specific compensation of $20 weekly for 255 weeks, as provided in the then applicable statute, G.L.1938, chap. 300, art. II, sec. 12(b) as amended.

The record further establishes that petitioner continued to receive weekly compensation for total incapacity until September 14, 1953, at which time he returned to work for respondent. He thereafter received weekly compensation for partial incapacity until November 27, 1955, when his weekly earnings became equal to or in excess of his average weekly wage at the time of the injury. Thereafter, no weekly indemnity payments were made for either total or partial incapacity, but petitioner continued to work for respondent until or about July 15, 1965, when respondent closed its plant.

Although no weekly payments for total or partial incapacity were made after November 27, 1955, petitioner continued to receive $20 weekly for specific compensation through July 5, 1957, when the 255 weeks of such compensation ended. On July 8, 1957, a suspension agreement and settlement receipt were signed. Thereafter although there were no weekly payments made for either indemnity or specific compensation, respondent continued to furnish petitioner with medical expenses incurred in connection with the wearing of an artificial leg, or repairs thereto. The last such payment was on March 22, 1965, when respondent paid $775 to the Rhode Island Artificial Limb Company for a new artificial leg.

Thereafter, apparently in 1967, this new artificial limb required certain stated adjustments which were made by Rhode Island Artificial Limb Company at a cost of $139. In November 1967, said company billed respondent for the $139, but the bill was returned, respondent declining to pay. Moreover, still further adjustments were indicated as being necessary to give petitioner a serviceable fit. These latter adjustments would call for a new socket and other parts, but such adjustments were not made.

Meanwhile, the instant petition to review had been filed April 18, 1967. It originally sought only weekly compensation benefits on the ground that petitioner's incapacity for work had increased or returned. When the case came on to be heard before a single commissioner, February 9, 1968, however, said single commissioner permitted two amendments. They sought to hold respondent liable for the $139 for the adjustments already made as well as for the additional adjustments heretofore mentioned and permission to exceed the legal maximum for medical expenses.

At the hearing on the petition, Albert L. Teoli, the prosthesis manufacturer, who did business under the firm name of Rhode Island Artificial Limb Company, testified in detail as to the work done which cost $139, as well as to that which remained to be done. He testified further as to why all such work was necessary to give petitioner full beneficial use of the artificial leg. Additionally, he testified that $139 was reasonable for the work already performed and the reasonable cost of future work would be $225.

Although directing the major portion of his testimony to an alleged incapacity for work, petitioner also testified regarding expenses incurred and to be incurred in connection with repairs and adjustments to his artificial leg. He explained that while the prosthesis, being a suction or contour type, fit properly when purchased several years earlier, it now required a new socket without which control was limited.

His testimony on the issue of incapacity for work established that since the job with respondent had terminated in July 1965, petitioner had not worked except for a seven-month period for Goodwill Industries. This was preceded by a period of vocational rehabilitation training. He stated that when collecting unemployment compensation, he received several referrals to other employers but was unsuccessful in obtaining work. The petitioner attributed this lack of success to his condition, but also frankly stated that he wasn't sure of this, saying, 'Actually, I don't know if it's the injury or not.'

In reaching his decision, the single commissioner, nothing petitioner's ateady employment from 1953 to 1965, during the last ten years of which the weekly earnings exceeded the average weekly wage at the time of the injury, and commenting on petitioner's ability to get around, concluded that petitioner was able to do work at which he could earn more than his average weekly wage of $53.40, if actually interested in obtaining work. On this issue, the single commissioner found as a fact that petitioner had failed to prove any incapacity for work that would entitle him to weekly indemnity benefits.

Affirmatively, he found as facts that petitioner was in need of further medical and related services to cure, rehabilitate or relieve him from the effects of his injury; that the adjustments to the prosthesis costing $139 were likewise necessary and the expense fair and reasonable.

However, he also found that the petition having been brought April 18, 1967, was barred by § 28-35-45 (see footnote 1) because more than ten years had passed since the last payment of weekly compensation, such last payment for partial incapacity having been made November 27, 1955.

A decree embodying these findings and orders was entered and petitioner appealed to the full commission. He gave as reasons therefor that the findings of fact on petitioner's capacity for work and the time period within which the petition was filed were against the law, the evidence and the weight thereof and that the order denying and dismissing the petition was against the law.

The full commission affirmed the findings and order contained in the single commissioner's decree and accordingly entered a final decree, relying on Brothers v. Cassedy, Inc., 101 R.I. 307, 222 A.2d 363.

In that case, the last weekly compensation payment was made July 18, 1954. On September 16, 1964, however, the employer reimbursed the employee in the sum of $30 for medical expenses. Subsequently, March 24, 1965, the employee brought a petition to review. It was denied and dismissed by the full commission on the ground that it had not been brought within ten years of the July 18, 1954, payment of weekly compensation for total disability.

Public Laws 1954, chap. 3297, now G.L.1956, § 28-35-45, had become effective July 1, 1954, some seventeen days prior to the July 18 payment of weekly compensation. In his appeal from the final decree in that case, the employee conceded that his petition to review would have been barred by the 1954 amendment except for the September 16, 1964 reimbursement of $30 on which fact employee made two contentions.

They were first, that this September 16, 1964 payment for medical expenses revived the employer's obligation and that a payment for medical expenses was a payment of compensation within the meaning of now § 28-35-45. We rejected the employee's first contention saying at 310, 'In short, we are of the opinion that with the running of the statutory term of ten years the liability of the employer under the decree or agreement terminates. Consequently, there is thereafter no liability for the employee to enforce by an invocation of the remedy set out in the statute.'

Having reached this conclusion, we declined to pass on the employee's threshold proposition; namely, that the payment of medical expenses was a payment of compensation on which a petition to review could rest. Obviously, it would have served no useful purpose to do otherwise.

In the instant appeal, petitioner contends, as he did before the full commission, albeit unsuccessfully, that on the facts of the case at bar § 28-35-45 is not applicable or, if applicable, the instant petition to review is not barred by the provisions of the cited statute.

In support of his contention as to non-applicability of the 1954 amendment on which the Brothers case turned, petitioner cites Mattos v. Sayles Finishing Plants, Inc., 93 R.I. 514, 177 A.2d 189. There, a preliminary agreement was approved by the director of labor on March 9, 1950, by reason of an injury sustained February 15, 1950. The last payment of weekly compensation benefits was made for total incapacity on April 25 of the same year. Thereafter, on February 17, 1961, the employee brought a petition to review. It was dismissed by the full commission on the ground that more than ten years had passed since the last ...