Perlman v. Philip Wolfe, Haberdasher

729 A.2d 673, 1999 R.I. LEXIS 74, 1999 WL 173651
CourtSupreme Court of Rhode Island
DecidedMarch 24, 1999
DocketNo. 98-116-M.P.
StatusPublished

This text of 729 A.2d 673 (Perlman v. Philip Wolfe, Haberdasher) 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
Perlman v. Philip Wolfe, Haberdasher, 729 A.2d 673, 1999 R.I. LEXIS 74, 1999 WL 173651 (R.I. 1999).

Opinion

OPINION

GOLDBERG, Justice.

This case comes before us on a petition for certiorari filed by Philip Wolfe, Haberdasher (employer) to review a final decree issued by the Appellate Division of the Workers’ Compensation Court (Appellate Division). The Appellate Division affirmed the trial judge’s decision to grant certain petitions on behalf of the claimant, Stuart Perlman (Perlman), for workers’ compensation benefits and for reimbursement of medical expenses. We granted the petition for the issuance of the writ and now reverse the decree of the Appellate Division.

Factual and Procedural History

The present controversy arose as a result of a lower back injury that Perlman incurred on May 25, 1982, while attempting to lift a sewing machine in the course of his employment with the employer. As a result of this injury, Perlman received compensation benefits for a partial incapacity for a period of several years. Following a surveillance of Perlman, however, [674]*674which was conducted at the behest of the employer’s insurance carrier, a hearing was conducted pursuant to the employer’s petition to review.1 As a result of this hearing, the Chairman of the then-Workers’ Compensation Commission entered a decree dated January 3, 1990, wherein Perlman was found to be no longer totally or partially incapacitated, and an immediate suspension of compensation benefits was ordered. No appeal was taken from this decision and Perlman never returned to the work force.

On September 26,1995, Perlman filed an employee’s petition to review the suspension of benefits, alleging a return of his original work-related injury of May 25, 1982, commencing August 22, 1995.2 At a pretrial hearing, a trial judge initially denied Perlman’s petition. However, at a subsequent trial on the merits, Perlman prevailed. At trial, Perlman presented the deposition testimony of his treating physician, Dr. Edward Spindell (Dr. Spindell), an orthopedic surgeon, who reported that Perlman’s disability had been continuing since 1982, and that in his opinion, had actually worsened over time. Doctor Philo F. Willetts (Dr. Willetts), the employer’s examining physician, rendered a different opinion. Through deposition testimony, Dr. Willetts opined that Perlman’s condition had not worsened since his first examination in 1989, but had in fact improved. Further, Dr. Willetts opined that Perl-man’s present condition was not related to the 1982 injury, but instead was caused by a 1966 condition that resulted in surgery. Ultimately, the trial judge found Dr. Spin-dell’s testimony to be more probative of Perlman’s condition; consequently, he concluded that Perlman had satisfied the burden of proving a return of incapacity and reinstated Perlman’s weekly benefits retroactive to August 22, 1995. Because Perlman was unable to demonstrate an earning capacity within the thirteen weeks immediately preceding the August 22,1995 incapacity, however, the trial judge ordered weekly payments to be established by the original decree entered as a result of the May 25,1982 injury.

On appeal, the Appellate Division affirmed the trial judge’s decision while rejecting the employer’s argument that Perl-man was not entitled to benefits because he had been unemployed since 1990, and therefore could not demonstrate a loss of earning capacity. Specifically, the Appellate Division relied upon this Court’s opinion in Lisi v. Warren Oil Co., 601 A.2d 956 (R.I.1992), wherein we declared that “[wjhen a disability is classified as a recurrence, the insurer on risk at the time of the original injury is liable for the employee’s disability,” id. at 959, and ordered weekly compensation benefits at the rate in effect when Perlman was originally injured. Moreover, the Appellate Division found that in cases where an incapacity returns, it was immaterial as to whether or not the employee had left the work force voluntarily, because the rate in effect at the time of the original injury was the applicable rate. In support for this proposition, the Appellate Division noted that G.L.1956 § 28-33-20.13 provides that the [675]*675recalculation of the average weekly wage for recurrence injuries is limited to those cases “where the employee has been employed for wages for twenty-six (26) weeks prior to the date of the recurrence. Otherwise, the earnings capacity established in the earlier order or decree still controls.” (Emphasis added.) We granted the employer’s petition for certiorari and now reverse.

Analysis

On review, the employer asserts that the Appellate Division erred as a matter of law in its interpretation and application of § 28-33-20.1. Specifically, the employer asserts that § 28-33-20.1 is the exclusive method for recalculating an earning capacity upon a return of incapacity, and that in order to qualify for recurrence benefits, an employee must have returned to work for at least twenty-six weeks. The employer contends that because Perlman has not worked for the twenty-six weeks prior to the recurrence, he has failed to establish an earning capacity and therefore should surrender his entitlement to workers’ compensation benefits. In other words, the employer argues that the workers’ compensation scheme in this state is designed to compensate an injured worker for a loss of earning capacity, rather than for an injury, and that where, as here, there are no earnings prior to the recurrence, there can be no loss of earning capacity. We respectfully disagree with this contention. Instead, in cases where the employee has alleged a recurrence of incapacity, we shall deny recovery only in those cases where the employee has voluntarily withdrawn from the work force. By establishing this rule, we recognize a myriad of reasons why an injured worker may be unable to demonstrate an earning capacity for the twenty-six weeks prior to a recurrence of a work-related injury, not all of which amount to a voluntary withdrawal from the work force, and not all of which constitute disqualifying events that preclude the recovery of benefits.

Recently, in Lambert v. Stanley Bostitch, Inc., 723 A.2d 777 (R.I.1999), we had occasion to address an injured worker’s entitlement to compensation benefits when the employee had not worked for the statutorily prescribed period of thirteen weeks immediately preceding the date of incapacity. We affirmed the Workers’ Compensation Court Appellate Division’s decree that awarded Lambert benefits, notwithstanding his failure to work the thirteen weeks prior to his incapacity. Id., 723 A.2d at 783. Specifically, we declared that an employee’s inability to earn a weekly wage during the requisite thirteen weeks prior to the date of incapacity was not fatal to the claim for benefits when the failure to work was involuntary. Id. at 781. In doing so, we distinguished Mullaney v. Gilbane Building Co., 520 A.2d 141 (R.I.1987), and limited its holding to situations wherein the employee has voluntarily left the work force, either through retirement or other volitional reasons. Lambert, 723 A.2d at 782.

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Related

Mullaney v. Gilbane Building Co.
520 A.2d 141 (Supreme Court of Rhode Island, 1987)
Cole v. Davol, Inc.
679 A.2d 875 (Supreme Court of Rhode Island, 1996)
Lambert v. Stanley-Bostitch, Inc.
723 A.2d 777 (Supreme Court of Rhode Island, 1999)
Geigy Chemical Corp. v. Zuckerman
261 A.2d 844 (Supreme Court of Rhode Island, 1970)
Lisi v. Warren Oil Co.
601 A.2d 956 (Supreme Court of Rhode Island, 1992)
Wright v. Rhode Island Superior Court
535 A.2d 318 (Supreme Court of Rhode Island, 1988)

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Bluebook (online)
729 A.2d 673, 1999 R.I. LEXIS 74, 1999 WL 173651, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perlman-v-philip-wolfe-haberdasher-ri-1999.