Afonso v. Pierce Buick, Inc.

478 A.2d 560, 1984 R.I. LEXIS 548
CourtSupreme Court of Rhode Island
DecidedJune 28, 1984
DocketNo. 82-437-Appeal
StatusPublished
Cited by1 cases

This text of 478 A.2d 560 (Afonso v. Pierce Buick, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Afonso v. Pierce Buick, Inc., 478 A.2d 560, 1984 R.I. LEXIS 548 (R.I. 1984).

Opinion

OPINION

WEISBERGER, Justice.

The matter presently before the court is a workers’ compensation proceeding wherein Pierce Buick, Inc. (employer), appeals from a decree entered by the Workers’ Compensation Appellate Commission reversing the trial commissioner’s decree denying and dismissing the petition for benefits of Joseph Afonso (employee). The appellate commission further ordered the payment of compensation for total disability to the employee from and after August 19, 1980. As a result of such determination, the employer filed the instant appeal accompanied by a motion to stay the decree of the appellate commission pending final decision by this court. A motion to dismiss the appeal was also filed on behalf of the employee. On December 30, 1982, this court entered an order denying the employee’s motion to dismiss and granting the employer’s motion to stay the decree pending appeal in respect to the payment of back compensation benefits previously ordered by the decree of the appellate commission. The facts pertinent to this appeal are as follows.

The employee, Joseph Afonso, was employed by Pierce Buick as a car salesman for approximately two years and nine months. The employee testified that his job entailed a considerable amount of walking in a large car lot located at the rear of employer’s business premises. The employee’s original petition for workers’ compensation benefits alleged that he sustained a lower-back injury that arose out of and during the course of his employment. In his petition, employee prayed for compensation for total disability from October 20, 1980, and continuing into the future, medical benefits, specific compensation, [561]*561and counsel fees. The employee testified that he injured his back twice, once by slipping on ice present on employer’s premises and a second time by slipping on a flight of stairs, falling a distance of about three or four stairs. The second incident allegedly occurred sometime during August of 1980. The employee testified that after experiencing back pain the day after the second fall which intensified to an unbearable level after about a week, he began treatment with Dr. Walter Cotter. Doctor Cotter had previously treated employee for a back problem he allegedly suffered while employed for Bruin Chemical & Plastic Co. in 1971.1

At the hearing before the trial commissioner, in addition to his own testimony regarding the injury, employee asserted that a co-worker had witnessed his fall. On cross-examination counsel for employér later questioned employee regarding the alleged fall and injury. At this time, employee testified that a co-worker, James Moretti, had helped him up after his fall. Contradicting himself, employee then testified that Moretti had never come to his assistance because he told him everything was all right.

On employee’s behalf, Moretti testified that the employee fell in his presence while descending the stairs at employer’s business premises sometime during the summer of 1980. The witness further testified that the signed statement he previously gave to an insurance company investigator, Derrick Amato, was not accurate and was signed under duress for fear of losing his job as a result of the actions of both employer and the insurance representative. Moretti had signed the following statement:

“I am James Moretti age 29 of 28 Packard St. Cranston, R.I. I have no home phone. I am employed at the present with Eddy Buick as a salesman. I worked with Mr. Joseph Afonso when the company was owned by Pierce and also after the dealership changed hands. I am unaware of any specific incident or accident Mr. Afonso may have sustained while working at Pierce or Eddy Buick. I was not a witness to an alleged injury Mr. Afonso claims happened while working with Pierce or Eddy Buick.”

The witness subsequently left employer’s business around March of 1981. Amato, the insurance representative, was called as a witness and testified that Moretti had been hesitant to sign the statement but had done so after Amato had threatened that he would be asked to testify later if he failed to sign.

In an affidavit entered as an exhibit, Dr. Cotter attested that in his opinion employee aggravated his preexisting back condition by a fall suffered at his place of employment in August 1980 and that the aggravation necessitated surgery. The doctor further stated his opinion that employee was rendered totally disabled as of September 1, 1980. When Dr. Cotter was later called in by employer for cross-examination, he testified that he did not learn of a fall at work until the December 16, 1980 visit and until then, had assumed that the problem was a recurrence of an earlier disc injury. The doctor stated that the history employee gave him regarding his back problem included the information that he had started exercising because of the pain until he awakened one night suffering severe back pain after having exercised.

Subsequently, the trial commissioner entered his decision, based upon co-worker [562]*562Moretti’s testimony and prior statement, that the only reasonable inference that could be drawn was that Moretti did not see employee fall, nor was he present at the time of employee’s alleged fall. Moret-ti’s contention that he signed the earlier statement under duress was not found to be convincing by the trial commissioner. Furthermore, the doctor’s testimony contradicting his affidavit created doubt regarding the cause of the back injury. Thus, the trial commissioner, finding that employee failed to prove his injury by a fair preponderance of credible evidence, denied and dismissed employee’s petition.

Upon appeal by employee, the appellate commission reversed the decision and decree of the trial commission, stating as its rationale the following:

“[W]e are satisfied that the trial commissioner committed prejudicial error in admitting the statement of James Moretti over the objection of the petitioner [employee]. This is clear from a reading of the transcript and a reading of the trial commissioner’s decision where it appears that the trial commissioner decided this matter relying upon the circumstances surrounding the statement of Moretti and the testimony of witness, Amato. It is obvious to us that absent a showing as a condition precedent to the admission of said statement, [that] the petitioner [employee] was provided with a copy of the statement, upon his objection to the admission of said document that it was error for the trial commissioner to admit it and further it was error for the trial commissioner to rely upon said statement in rendering his decision.”

The employer contends in the instant appeal that the appellate commission committed prejudicial error in expunging from the record a statement taken from a co-employee of employee pursuant to G.L. 1956 (1979 Reenactment) § 28-35-10.2 Said statement, employer argues, does not fall within the terms of § 28-35-10 as it was not obtained from an injured employee, nor was it a report or statement of a supervisor or foreman.

We have construed the mandate of § 28-35-10 to be that “[i]f a copy of any document, report, or statement which is covered by the statute is not provided to an employee, any information so obtained may be excluded from the evidence at the hearing.” Davol, Inc. v. Aguiar, R.I., 463 A.2d 170, 172 (1983). See Worcester Textile Co. v. Morales,

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Bluebook (online)
478 A.2d 560, 1984 R.I. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/afonso-v-pierce-buick-inc-ri-1984.