Lomba v. Providence Gravure, Inc.

465 A.2d 186, 1983 R.I. LEXIS 1079
CourtSupreme Court of Rhode Island
DecidedSeptember 1, 1983
Docket82-527-Appeal
StatusPublished
Cited by12 cases

This text of 465 A.2d 186 (Lomba v. Providence Gravure, 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
Lomba v. Providence Gravure, Inc., 465 A.2d 186, 1983 R.I. LEXIS 1079 (R.I. 1983).

Opinions

OPINION

SHEA, Justice.

The employer, Providence Gravure, Inc. (Providence Gravure), appeals from a decree of the Workers’ Compensation Commission (the commission) awarding disability benefits to the employee, Frank Lomba (Lomba), for an injury that occurred when Lomba raised his left hand in order to touch a fellow employee’s beard. We reverse.

On December 18, 1978 Lomba arrived at Providence Gravure with his lunch bag in hand. He punched in and headed for the locker room in order to change his clothes. On his way to the locker’ room, Lomba encountered a fellow employee by the name of Anthony Costa (Costa), whom he had not seen for some time. When Lomba noticed that Costa was sporting a beard, he raised his left hand, reached for the beard and said, “When are you going to shave it.” Lomba had been holding his lunch bag with the hand he raised. Immediately after raising his arm, Lomba grabbed his shoulder and fell to the floor in pain. Costa said he just walked away believing Lomba was “just fooling around * * Lomba reported the incident to his supervisor and was taken by ambulance to Miriam Hospital. At the hospital, an X-ray was taken of Lomba’s shoulder which revealed no evidence of a recent fracture or dislocation. In his written report, which is in evidence as part of the hospital record, Doctor M.J. [188]*188Ryvicker, the radiologist who read the X-ray, stated that his impression was that Lomba was not suffering from any acute ossneosus (bony) injury.

On January 8, 1979, Dr. A. Louis Marior-enzi examined Lomba’s shoulder. At the hearing, Dr. Mariorenzi testified that the results of his examination “were normal except [Lomba] had some apprehension when I attempted to abduct and hyperex-tend the shoulder, which is very common.” Based upon his examination, Dr. Mariorenzi concluded that Lomba’s shoulder required surgical repair. He also determined that Lomba was incapable of gainful employment. In February, Dr. Mariorenzi operated on the shoulder to correct the problem of recurrent dislocation.

On January 12, 1979, Lomba filed this petition for Workers’ Compensation benefits. The trial commissioner found that Lomba sustained an injury to his left shoulder, which “occurred while reaching up with his left arm to pat a co-worker.” He also determined that this injury arose out of and in the course of Lomba’s employment at Providence Gravure. The appellate commission sustained these findings and made the following additional findings:

“It further appears from an examination of the evidence in this case that the petitioner’s problems flowed from and originally resulted from a July 13, 1978 incident, while he was employed by the same employer, at which time he injured his left shoulder while lifting bundles of work.”

The appellate commission determined that Lomba’s incapacity resulted from an aggravation of a previous industrial injury sustained while in the employ of Providence Gravure. Lomba never resumed his employment at Providence Gravure.

On appeal, Providence Gravure contends that the commission erred by determining that Lomba sustained a compensable injury. In order to be entitled to compensation benefits, an employee must receive “a personal injury arising out of and in the course of his employment, connected therewith and referable thereto * * *.” General Laws 1956 (1979 Reenactment) § 28-33-1.

The appellate commission determined that Lomba’s incapacity resulted from the aggravation of a previous injury. Basically, two types of aggravation are compensable. The first type occurs when the employee is suffering from a preexisting disease or infirmity, that the employment aggravates or accelerates to produce a disability. See Bishop v. Chauvin Spinning Co., 86 R.I. 435, 136 A.2d 616 (1957). With this type of aggravation, the employee is not required to show that the original infirmity or disease arose out of or in the course of employment. He must merely demonstrate that the employment aggravated the preexisting condition. The second type of aggravation usually occurs when the employee suffers a work-related injury that is aggravated by medical or surgical treatment. The aggravation is a compensable consequence of the original injury. See Sherry v. Crescent Co., 101 R.I. 703, 226 A.2d 819 (1967); 1 Larson, Workmens Compensation Law § 13.21 (1982).

In the case at bar, the appellate commission determined that both the preexisting injury and the aggravation arose out of and in the course of employment.

Fact-finding is within the province of the commission. DeNardo v. Fairmount Foundries Cranston, Inc., 121 R.I. 440, 444, 399 A.2d 1229, 1232 (1979). On appeal it is our duty to review the record to determine whether there is any legally competent evidence to support the findings of fact made by the commission. Absent fraud, the factual findings of the commission are binding upon this court if supported by competent evidence. See e.g., Bottomley v. Kaiser Aluminum & Chemical Corp., R.I., 441 A.2d 553, 554-5 (1982); Coletta v. Leviton Manufacturing Co., Inc., R.I., 437 A.2d 1380, 1383 (1981).

The record does contain evidence that Lomba was suffering from a preexisting shoulder condition. Doctor Mariorenzi testified that Lomba had previous episodes of [189]*189dislocation and that his injury had a chronic component. The record also contains competent evidence that the shoulder condition was aggravated when Lomba raised his left hand, with which he was holding his lunch bag, in order to touch Costa’s beard. Doctor Mariorenzi testified that “the accuteness of the injury was from raising the arm with the lunch bag.” The record, however, does not contain a shred of evidence to establish that Lomba’s preexisting shoulder condition was caused by his employment at Providence Gravure. Lomba did not present any medical evidence on this issue. Therefore, the commissions’s factual determination was based on pure speculation. We are faced with a situation where the commission made an incorrect finding of fact, and will discard that finding. The correct factual findings that remain are Lomba had a preexisting shoulder condition that was aggravated when he raised his hand to touch a co-worker’s beard. We must now address the legal issue raised by this appeal.

A question of law is presented in reviewing whether or not an injury arose out of and in the course of his employment, connected therewith and referrable thereto. DeNardo v. Fairmount Foundries Cranston, Inc., 121 R.I. at 449, 399 A.2d at 1234. In other words, was there a “nexus” or “causal relationship” between Lomba raising his hand to touch Costa’s beard and his employment.

“To establish such a nexus or causal relationship, the employee must show that his injury occurred within the period of his employment, at a place where he might reasonably have been, and while either fulfilling the duties of his employment or doing something incidental thereto or to the conditions under which those duties were to be performed.” Bottomley v. Kaiser Aluminum & Chemical Corp., R.I., 441 A.2d at 554.

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Lomba v. Providence Gravure, Inc.
465 A.2d 186 (Supreme Court of Rhode Island, 1983)

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Bluebook (online)
465 A.2d 186, 1983 R.I. LEXIS 1079, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lomba-v-providence-gravure-inc-ri-1983.