Veloso v. Lebanon Knitting Mills, Inc.

• Decision Date: 15 January 1973
• Docket Number: No. 1734-A,1734-A
• Citation: 111 R.I. 41,298 A.2d 804
• Parties: Maria VELOSO v. LEBANON KNITTING MILLS, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 804

298 A.2d 804

111 R.I. 41

Maria VELOSO v. LEBANON KNITTING MILLS, INC.

No. 1734-Appeal.

Supreme Court of Rhode Island.

Jan. 15, 1973.

[111 R.I. 45] Moses Kando, Pawtucket, for petitioner.

Keenan, Rice, Dolan & Reardon, H. Eliot Rice, Providence, for respondent.

OPINION

KELLEHER, Justice.

This is an employee's appeal from a decree of the Workmen's Compensation Commission affirming the trial commissioner's denial of an original petition wherein she sought compensation benefits for total incapacity.

Maria Veloso operated three automatic spinning machines at Lebanon's Pawtucket plant. She has sustained two separate injuries, both of which were work-related.

The first mishap occurred on August 26, 1969 when Maria lacerated the third finger of her left hand on a piece of equipment. Maria's employer agreed to pay her weekly compensation benefits for total incapacity and, as a result, she received $45 each week for a period of over a year. In September, 1970, the employer filed a petition to review and therafter a consent decree was entered. It contained a finding that Maria's incapacity had been reduced from total to partial. She was ordered to make a bona fide effort to obtain work. ¹ She reported for work at Lebanon, stayed there for a few minutes and left. Thereafter, her weekly benefit was reduced from $45 to $22.

On March 19, 1971, Maria filed a petition to review in which she asked that her benefits be increased to $45 because she had made a diligent but unsuccessful effort to obtain a suitable job. She was persuaded to return to Lebanon and its spinning machines. On May 3, 1971 she reported for work. She worked about two hours and departed. On June 15, 1971 a decree was entered denying Maria's petition to review.

Maria filed the instant petition on July 19, 1971 in which it is alleged that during her May 3, 1971 sojourn at Lebanon she injured her left hand. Testimony was presented before the trial commissioner at various times during September and October of 1971. Maria speaks only Portuguese. Her testimony was given through an interpreter. Her unseuccessful efforts to regain the $45 weekly benefit is due in no way to the language barrier. Rather, their roots lie in the evidentiary gaps which abound in the record.

In considering Maria's appeal, we need set forth but two legal principles which are particularly pertinent to these proceedings. They are:

1. The employee who seeks compensation must establish the extent of the loss of his earning capacity with a reasonable degree of certainty.

2. If the commission's findings as to the extent of the loss are based on legally competent evidence, they cannot be disturbed by this court.

Maria gave two versions as to the cause of her second injury. Before the trial commissioner, she testified that a vacuum cleaner which was attached to one of her machines struck her in the back and she, in turn, struck the back of her left hand against the machine. Subsequently, her attending physician told the commission that his patient gave him a history of a spindle falling off the machine and striking the hand.

When the employee appeared at the hearings before the trial commissioner, her left hand was bandaged and appeared to be swollen and discolored. Two neurosurgeons who examined Maria at the insistence of her physician testified that from a neurological point of view they could find nothing wrong with the hand. A report by Maria's physician showed that on June 28, 1971, the discoloration on the hand was 'nearly gone.' He also stated that it was not normal for a hand to appear in the condition that it did some five months after it was injured. One of the neurosurgeons could...