Worcester Textile Co. v. Morales

• Decision Date: 18 November 1983
• Docket Number: No. 80-354-A,80-354-A
• Citation: 468 A.2d 279
• Parties: WORCESTER TEXTILE CO. v. Mario MORALES. ppeal.
• Court: Rhode Island Supreme Court

Page 279

468 A.2d 279

WORCESTER TEXTILE CO. v. Mario MORALES.

No. 80-354-Appeal.

Supreme Court of Rhode Island.

Nov. 18, 1983.

Raul L. Lovett, Providence, for appellant.

Harold Adams, Providence, for appellee.

OPINION

KELLEHER, Justice.

This is a workers' compensation proceeding in which the employee appeals from a decree of the Workers' Compensation Commission authorizing the employer to suspend the payment of benefits due the employee for a work-related injury that was sustained on July 26, 1975. Hereinafter we shall refer to the employee as "Morales" and the employer as "Worcester."

The present proceedings were instituted on November 28, 1977, when Worcester filed a petition to review with the Commission. Worcester there alleged that Morales was no longer incapacitated because in the spring of 1977 he had returned to work in Attleboro, Massachusetts, at Texas Instruments, Incorporated, at an average gross weekly wage far in excess of what he had been receiving at the time he was injured. At the hearing before the trial commissioner, Morales, who lived in Pawtucket, admitted that in 1977 he did work at Texas Instruments during a fifteen-week period that began in mid-March and ended in mid-June. When he was also shown a wage transcript prepared by the Attleboro employer indicating payment of gross wages to him of $2,359.77, he said that the document was accurate. He conceded that he had told nobody about this employment. However, when asked, he denied having worked on the second shift at a "chemical plant in Massachusetts" since mid-June 1977. He did concede that he might have worked sometime in July 1977 for two days in a Providence laminating factory because of his need to support eight children.

The trial commissioner also heard from a special investigator who testified that on March 16, 1978, he had talked to Morales and was informed by Morales that he was working at a chemical company located in Plainville, Massachusetts. According to the investigator, Morales was in a hurry that day because he had to get to work for the second shift. The investigator also told the trial commissioner that on another occasion he followed Morales to Engelhard Industries in Plainville, Massachusetts, and at 2:55 p.m. watched him park his car in the company's parking lot and enter the plant's premises. The investigator then left the area and subsequently called Engelhard's personnel office and "made a verification with the personnel office by telephone" that Morales was part of the company's work force and had been since August 22, 1977.

The trial commissioner ruled that Morales's incapacity had ended because he had taken a job in which his postinjury earnings exceeded his preinjury earnings. On appeal, the appellate commission affirmed the trial commissioner.

Morales, through counsel, claims that the appellate commission erred in two areas. It ignored the provisions of G.L.1956 (1979 Reenactment) § 28-35-10 and also relied on evidence that violated the rule barring the use of hearsay testimony.

Turning to § 28-35-10, we find that this statute provides in its pertinent portions that if an employer or his insurer or anyone on their behalf obtains from an injured employee any "statement * * * concerning compensation," an exact duplicate copy thereof shall be furnished to the employee "at the time [it] is obtained." The statute also stipulates that it is applicable regardless of the method used to obtain such a statement or whether the statement is "signed or unsigned." If the requisite copy is not furnished "strictly" in accordance with the statute's provisions, the employee's attorney can bar the use of the statement as well as any testimony by the individual who obtained it.

In construing this provision, the appellate commission embraced the position that the statute is triggered only when the statement is reduced to writing. Assuming the correctness of Worcester's position, the record clearly indicates that the investigator made a written report of his surveillance of and conversation with Morales to Worcester because at one point in his testimony before the trial commissioner, he said, "I am reading and referring to my report only to make sure [that] the statements are clear."

In Giordiano v. Uniroyal, Inc., 108 R.I. 226, 273 A.2d 855 (1971), the employer sought to impeach an employee who claimed she was injured when her elbow struck an iron box. An offer of proof was made in which it was alleged that a plant nurse, if permitted to testify from her notes, would show that the employee attributed her pain and discomfort to an entirely different cause. As this court noted in Giordiano, the statute is quite broad and embraces within its reach specifically "any...