Whittaker v. Health-Tex, Inc., HEALTH-TE
| Decision Date | 13 January 1982 |
| Docket Number | HEALTH-TE,No. 80-47-A,INC,80-47-A |
| Citation | 440 A.2d 122 |
| Parties | John R. WHITTAKER, Jr. v.ppeal. |
| Court | Rhode Island Supreme Court |
This case is before the court on appeal by the employee, John R. Whittaker, Jr., from a decree of the Appellate Commission of the Workers' Compensation Commission affirming a decree entered by the trial commissioner granting compensation benefits to Whittaker for part of the time for which he had sought them. The sole issue raised on appeal is whether there was legally competent evidence in the record to support the appellate commission's decision. We affirm.
At the time of his injury Whittaker was employed as a forklift operator by Health-Tex. He stated that his job consisted of unloading trucks and delivering yarn and that it involved much lifting and walking. On February 21, 1978, he suffered a contusion and puncture wound to his lower right leg after it was caught between two forklifts when a brake let go. Whittaker and Health-Tex entered into a preliminary agreement on March 13, 1978, whereby Health-Tex agreed to pay Whittaker compensation based on an average weekly wage of $163.66 for a period not to exceed thirteen weeks.
On June 20, 1978, Whittaker filed an original petition at the Workers' Compensation Commission seeking benefits for total disability from February 22, 1978, and "continuing." In his petition Whittaker stated that he had received benefits from his employer from February 22, 1978 until May 10, 1978.
At the hearing before the trial commissioner, Dr. Richard Bertini testified on Whittaker's behalf. It was Dr. Bertini's opinion that Whittaker was totally incapacitated for work from March 2, 1978, when he first examined him, until May 25, 1978, at which time he felt Whittaker was able to do light selected work. Whittaker testified that he returned to work at his regular job on July 28, 1978 at a wage level in excess of the amount he was earning previously. 1
Based on the evidence presented at the hearing the trial commissioner found that Whittaker was totally incapacitated for work from March 2, 1978 until May 25, 1978. He further concluded that Whittaker was partially incapacitated between May 25 and July 28, 1978, and thus ordered that compensation be paid accordingly through July 28.
On appeal, in a decision dated December 28, 1979, the appellate commission affirmed the trial commissioner upon examination of the record. The full commission found that Whittaker was able to return to his regular work on July 28, 1978, and that there was no evidence that he was earning less money upon return than he had been earning prior to his injury on February 21, 1978. Further, the commission found no evidence to substantiate Whittaker's claim of a continuing partial disability after July 28.
Whittaker filed his notice of appeal to this court on January 9, 1980. He argues that the evidence adduced at the hearing established that the physical side effects of his injury had not disappeared at the time he returned to work on July 28. Also he claims that the record was devoid of clear, uncontradicted evidence that he was receiving wages equal to or greater than those he had received previously. Therefore, Whittaker argues that the appellate commission erred in affirming the decree of the trial commissioner.
Under Rhode Island's statutory scheme it is the loss of an employee's earning capacity, not the injury itself, which is compensable. Peloso, Inc. v. Peloso, 103 R.I. 294, 237 A.2d 320 (1968). In Peloso this court concluded that "(w) ithout a loss or impairment of earning capacity, no recovery of workmen's compensation benefits may be accorded an injured employee irrespective of the fact that a permanent or lingering physical injury may have been sustained." Id. at 297, 237 A.2d at 323. The burden of proof of whether there has been a loss of earning capacity lies with the employee. To sustain this burden a petitioner must prove the loss with some specificity. Rodiboux v. Uniroyal, Inc., R.I., 403 A.2d 262, 264 (1979); Weber v. American Silk Spinning Co., 38 R.I. 309, 315, 95 A. 603, 605 (1915). Whittaker's testimony regarding his earnings after returning to work...
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