Kleistone Rubber Co. v. Audette

251 A.2d 525, 105 R.I. 258, 1969 R.I. LEXIS 748
CourtSupreme Court of Rhode Island
DecidedMarch 20, 1969
StatusPublished

This text of 251 A.2d 525 (Kleistone Rubber Co. v. Audette) 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
Kleistone Rubber Co. v. Audette, 251 A.2d 525, 105 R.I. 258, 1969 R.I. LEXIS 748 (R.I. 1969).

Opinion

Powers, J.

This is an employer's petition to review a compensation agreement. The cause is before this court on the respondent employee’s appeal from a final decree of the full commission. The decree appealed from contains two findings which, employee contends, are not supported by competent evidence and are otherwise contrary to law.

The record discloses that on February 19, 1963, employee, appellant here, complained to her employer, appellee here, of an injury alleged to be work-connected. Subsequently, September 25, 1963, a consent decree was entered, establishing that employee was suffering from a “tenosynovitis and crepitus of the right thumb” and that this condition [259]*259arose out of and in the course of her employment. The decree further fixed her average weekly wage at $75 and awarded her compensation for total disability from February 21, 1963, through August 5, 1963, and compensation for partial incapacity from August 6, 1963, until otherwise modified and terminated.

There then followed successive employer’s petitions to review. The first was denied by a single commissioner and unappealed. With the filing of employer’s second petition, employee also filed a petition to review, the employer seeking to terminate compensation and employee seeking to establish that her incapacity had become total. These petitions were heard by a single commissioner who denied and dismissed both petitions. This resulted in employee continuing to receive compensation for partial incapacity. The decree thus fixing employee’s benefits as of that time was entered February 10, 1965.

Some time thereafter, employer filed another petition to review which, after a hearing before a single commissioner, was appealed to the full commission. On February 14,1966, said commission entered a decree authorizing the employer to suspend compensation benefits by reason of the commission’s finding that employee’s incapacity for work resulting from her injury of February 19, 1963, had ended.

The employee took no appeal from that decree to this court. Rather, she filed a petition to review on the ground that her incapacity for work had returned. After a hearing thereon a decree was entered on June 29, 1966, which contained the finding that on June 11, 1966, employee had returned to work but was partially incapacitated and had been so since the entry of the February 14, 1966, decree suspending compensation. The June 29, 1966, decree ordered payments of compensation for maximum partial incapacity from February 14, 1966, to June 11, 1966, and payments of not more than $15 weekly for partial incapacity on weekly earnings of $50 since her return to work.

[260]*260The employer did not appeal from that decree. Rather, on November 21, 1966, it filed the instant petition to review on the customary ground that employee’s incapacity for work had ended. Several hearings were held thereon before a single commissioner, the first such being February 14, 1967.

Prior thereto but subsequent to the filing of the employer’s petition, employee was examined at the request of the commissioner by Dr. John O. Strom, neurologist. His report was made part of the record by the single commissioner at the first hearing. On that occasion, neither party was fully prepared and the single commissioner continued the hearing to February 28, 1967. However, said recessed hearing did not resume until October 31, 1967.

At said second hearing, employer, without objection, introduced the medical reports of nine medical experts, all of whom had either treated or examined employee at some time after her injury of 1963, and prior to the entry of the June 29, 1966 decree. Additionally, employer introduced, again without objection, the medical report of Dr. Arthur E. Martin, medical director of the Dr. John E. Donley Rehabilitation Center where employee was treated, according to said report, from May 14, 1964, to August 19 of the same year. With the introduction of these reports, the hearing was again recessed for the taking of testimony.

The hearing was resumed on November 13, 1967. On that occasion, employer, the moving party, called as its witness Dr. Michael E. Scala, an orthopedic surgeon. Notwithstanding that he had been called by employer, Dr. Scala was employee’s personal physician and had been treating her since October 11, 1966. He testified in effect that employee was suffering from a condition he diagnosed as “a median nerve carpal tunnel syndrome,” which he described as * * a strong tight band at the wrist that squeezes down on the nerve.” It was the further thrust of [261]*261liis testimony that this condition rendered employee permanently and partially disabled for anything but light work. This testimony as to employee’s medical condition was corroborated by the medical report of the impartial examiner, Dr. Strom.

At the conclusion of Dr. Scala’s testimony and employer’s introduction of three additional medical reports made by Dr. Scala, as well as employee’s introduction of a report of Dr. Scala dated May 1, 1967, employer rested.

In light of Dr. Scala’s testimony and the medical reports in evidence, employer moved and was permitted to amend its petition so as to allege, “If the employee has any incapacity, it is not the result of her injury of February 19, 1963 as described in the consent decree of W.C.C. 63-1178.” Confronted with what she considered to be a narrowing of the issue on which employer had the burden of proof, employee requested and was given a further continuance in which to prepare her defense.

On December 19, 1967, the hearing was resumed and Dr. Scala again called, this time by employee. Dr. Scala then testified that employee still had problems with the “tenosynovitis” and that her incapacity for work was partially attributable to this condition. He conceded, however, that the latter condition and “carpal tunnel syndrome” were, as he expressed it, “two distinct entities,” and that one could not flow from the other. He suggested, however, that the two conditions had existed simultaneously and might have resulted from the same injury. He reiterated, however, that they were separate and distinct conditions saying, “they are not related tissuewise medically.”

The single commissioner then called Dr. Scala’s attention to the fact that in none of four of Dr. Scala’s medical reports in evidence was there any mention of employee’s original complaint, namely a “tenosynovitis and crepitus of the right thumb.” Dr. Scala conceded this to be so, but [262]*262called attention to his report of November 7, 1966. Therein he stated that employee, since the date of her injury in 1963, had been intermittently treated for “De Quervain’s disease” and that this treatment had continued to the time of his report. Dr. Scala identified “De Quervain’s disease” as another name for tenosynovitis.

This November 7, 1966 report of Dr. Scala, however, added that employee had minimal disability and that he did not plan to see her many more times. The single commissioner then pointedly asked Dr. Scala if he would now testify that De Quervain’s disease or tenosynovitis was a disabling factor with employee. To this Dr. Scala replied that it was part of employee’s problem but that the preponderance of disability was due to the median carpal condition.

Doctor Scala was the only witness to testify. On the basis of his testimony and the medical reports in evidence, particularly that of Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
251 A.2d 525, 105 R.I. 258, 1969 R.I. LEXIS 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleistone-rubber-co-v-audette-ri-1969.