Union Smelting and Refining Works v. Calhoun

• Decision Date: 15 February 1967
• Docket Number: No. 3177,3177
• Citation: 226 A.2d 498,101 R.I. 655
• Parties: UNION SMELTING AND REFINING WORKS v. Willie CALHOUN. Eq.
• Court: Rhode Island Supreme Court

Page 498

226 A.2d 498

101 R.I. 655

UNION SMELTING AND REFINING WORKS v. Willie CALHOUN.

Eq. No. 3177.

Supreme Court of Rhode Island.

Feb. 15, 1967.

[101 R.I. 659] Boss, Conlan, Keenan & Rice, Donald F. Shea, Providence, for petitioner.

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

OPINION

POWERS, Justice.

This is an appeal by an employee, hereinafter called the respondent, from a decree of the workmen's compensation commission sustaining the findings of a single commissioner who, after a hearing on an employer's petition for review, found that the respondent's incapacity for work had ended.

It appears from the record that respondent sustained a compensable injury to his back on December 19, 1962 while employed by petitioner as a truck driver and loader. A consent decree was entered August 12, 1963, by the terms of which respondent was awarded compensation for total incapacity from April 22, 1963 through June 30, 1963 and for partial incapacity thereafter based on an average weekly wage of $87.42.

The instant petition to review that decree was filed November 21, 1963 and a hearing was held thereon at which the only evidence adduced was respondent's testimony, a copy of the consent decree and the reports of two doctors.

The respondent, called by petitioner, testified as follows: 'Q. How do you feel now, sir? A. Well, the way I feel now, pretty good. I feel all right now. Q. Do you have any leg or back pain? A. No. Q. Do you feel you are able to do your regular work? A. Well, the way I feel now? Yes. Q. And, have you felt this well for some time? A. Yeah. Quite a while. Q. More than a couple of months as a matter of fact? A. Yes. Q. And, you would be willing to try your regular work? A. Yes. Q. To do your regular work now? A. Yeah. Q. You are willing? A. Yeah.'

Under questioning by his own attorney respondent testified in substance that he had not returned to his regular work on the advice of his doctor, who recommended that he wait because prematurely returning to the heavy lifting and bending he had been doing could bring on a recurrence of total incapacity. He also testified that he had been attempting to obtain light work but was unsuccessful.

Doctor Gian-Fortunat Hoessly, respondent's attending physician, stated in his report that he had made an excellent recovery but should not attempt the work that he had been formerly doing, commenting in detail on the arduous nature of respondent's regular work.

Doctor Theodore K. Gibson, petitioner's examining physician, submitted a report stating that he believed respondent had no residuals from his back injury and could do most any work but should refrain from arduous jobs requiring heavy lifting or frequent bending.

The single commissioner, construed respondent's candid testimony that he felt all right as evidence of complete recovery and observed: 'The theory behind workmen's compensation is only to award compensation during a period of incapacity and is not in the nature of health insurance. Granted that the respondent may have another injury if he attempts to do heavy work, there is no reason why the petitioner should continue to pay compensation to him for an earlier injury from which he has fully recovered.' He found that respondent was no longer incapacitated in whole or in part and that his earning capacity had returned.

These findings, together with an order suspending compensation for partial incapacity, were included in a decree from which respondent appealed to the full commission. It affirmed the single commissioner's findings, but entered its own decree containing the additional finding that respondent was able 'to return...