E. Turgeon Const. Co. v. Barbato, 2261

• Decision Date: 31 December 1953
• Docket Number: No. 2261,2261
• Citation: 81 R.I. 230,101 A.2d 481
• Parties: E. TURGEON CONST. CO., Inc. v. BARBATO. Eq.
• Court: Rhode Island Supreme Court

Page 481

101 A.2d 481

81 R.I. 230

E. TURGEON CONST. CO., Inc. v. BARBATO.

Eq. No. 2261.

Supreme Court of Rhode Island.

Dec. 31, 1953.

Worrell & Hodge, Lee A. Worrell, Providence, for petitioner.

Luigi Capasso, Providence, for respondent.

FLYNN, Chief Justice.

This is an employee's appeal from a final decree entered in the superior court granting the employer's petition to review a preliminary agreement under the Workmen's Compensation Act, General Laws 1938, chapter 300.

It appears that on March 20, 1951 the respondent employee was injured by accident in the course of his employment that a preliminary agreement for workmen's compensation was entered into between the parties and was approved by the director of labor on April 5, 1951; and that thereunder compensation at the rate of $28 per week during the employee's total incapacity was paid by the employer. The preliminary agreement described the cause of employee's injury as 'twisted arm while picking up pail,' and the injury which he sustained as 'Sprain right shoulder.'

On December 4, 1951 the employer filed with the director of labor a petition to review the agreement on the ground that the employee's incapacity had diminished or ended. From a decision thereon that the employee was partially disabled and came within the odd-lot doctrine the employer appealed to the superior court. Between the filing of such appeal and the hearing of the case de novo in that court, some fifteen months elapsed due to various reasons, including the illness of employee's attorney. This delay made it necessary or desirable to have a further examination of the employee prior to the hearing, and the court appointed Dr. Ernest D. Thompson, who had previously examined him under appointment by the director of labor, to make an impartial medical examination.

Doctor Thompson testified in effect that he found no substantial atrophy involving the right shoulder region and none at the right upper or forearm; that the mild atrophy at the right posterior shoulder and scapula was evidently secondary to the disuse of the arm and shoulder; and that a few degrees of limitation in external rotation because of the presence of a slight calcification near the scapula was of a nature that would improve with use and was in no way incapacitating. From his observations, examinations, and a comparison between the findings he reported on December 22, 1951 and those made on the examination of April 21, which were reported May 6, 1953, he gave his opinion that 'this patient had experienced the maximum benefit from the results of rest and therapy and that he should be able to return to his regular duties.' In relation to whether the employee should return to lighter duties first, he testified that 'there is no indication for further light duties'; that the employee was no longer suffering any incapacity from the injury described in the agreement; and that he was able to resume his regular work as a laborer.

On the other hand the employee and his physician, Dr. Joseph Badway, gave testimony to the general effect that the former was still suffering from the results of the original injury and that he was unable to resume his regular work. At least their testimony tended to show that the employee had not wholly recovered, was still partially incapacitated, and could do only light work, which had not been offered to him by the...