Bartlett v. Everett Products, Inc.

Roberts, J. This is an employee’s petition to review a decree of the workmen’s compensation commission wherein the respondent was ordered to make payments for total and partial incapacity and wherein it whs found that the petitioners incapacity hadderminated as of November 9, 1960. The- instant petition, filed on January 9, 1963, was denied and dismissed after a hearing ¡by a trial commissioner. The full commission,:, after a hearing- on the petitioner’s appeal from the-decree .of the.'trial commissioner, affirmed that decree, and the petitioner is prosecuting an appeal therefrom in this court. *477 The trial commissioner found “That the petitioner has failed to prove by a fair preponderance of credible evidence that any incapacity for work which she had subsequent to November 9, 1960 was due to an injury sustained on May 9, 1959.” On appeal the full commission expressly affirmed this finding, which on its face appears to be that petitioner had failed to establish a causal connection between some presently existing incapacity to earn and the injury of May 9, 1959. However, in its decision the full commission appears to have viewed it as a finding that “petitioner had failed to prove by the weight of the evidence that she has had a return or increase in incapacity as a result of her injury of May 9, 1959,” or, to put it otherwise, she.had proved no loss of present earning capacity as a result of that injury. The full commission clearly attached significance to the impartial medical examiner’s testimony that “not only could the petitioner do the same work which she had been doing at the time of her injury 'but that also her condition was approximately the same as it- had been when he had seen her earlier on October 15, 1960.” The petitioner’s only contention in this court is directed at the competence of evidence given through an impartial medical examiner. She argues that his testimony that she could perform the work she had been doing at the time of her injury was based upon a misconception of the evidence which described the duties required of her in the performance of that work. She directs our attention to his stated opinion that vprk -which required lifting and bending could hot be, performed by her. . This is, the basis- of petitioner’s argument that .there is in -the record.-no competent evidence upon which the commission’s finding as to’hey failure ip establish incapacity could be rested..,- The petitioner testified'that she'had b'eén injured on May 9, 1959 while' employed toy respondent as an inspector of hypodermic" needles.' She described her work as "inspecting *478 them, for defects and stated that it was a part of her duty to carry boxes of such needles to the work bench, which required her to lift and carry boxes that she believed weighed more than twenty-five pounds. She disclosed also that she was not required to remove these boxes of needles after inspection, this being.done apparently by another employee of respondent. Both petitioner and her attending physician testified that she presently was unable to perform work of any nature, including her household chores. Apart from the evidence adduced through petitioner and her attending physician, the only other testimony appearing in the record was given by the impartial medical examiner, who, it appears, had examined petitioner once in 1960 and again in 1963. He stated that it was his opinion that petitioner “was able to return to the kind of work that she described as her job, — that of an inspector of hypodermic needles, — I felt that she should not ever return to heavy work, and I don’t think she should lift more than 25 pounds repeatedly or stay in a stooped-over position for a long while.” When asked whether petitioner should avoid doing “any work that requires excessive bending or lifting,” he replied: “That’s right.” When asked whether he would recommend that petitioner go back to work on a full-time basis even at light work he replied: “I don’t know. — I.— maybe if she could go back to' half-time work for two weeks or something like that. But I don’t believe in dragging that out for a long while.” We are persuaded that petitioner is in fact challenging the probative force of the testimony of the impartial medical examiner on the issue of her loss of earning capacity as a result of her injury on May 9, 1969. The situation is similar to that with which we were confronted in United Wire & Supply Corp. v. Frenier, 87 R. I. 31. After a close examination of the evidence adduced through the impartial medical examiner concerning petitioner’s ability to perform *479 the duties involved in her prior employment, we are persuaded that he did not misconceive the character of those duties. The negative nature of the commission’s finding tends to obscure the relevance of the medical witness’ opinions on the issue. However, negative findings in the absence of fraud are conclusive upon this court if supported by legally competent evidence. DeFusco v. Ochee Spring Water Co., 84 R. I. 446. The commission drew a negative inference on the question of petitioner’s capacity to earn from other evidence relating to her ability to perform the duties of her prior employment, which is a finding of fact upon which the decision reached may properly rest. Spoli-doro v. United States Rubber Co., 72 R. I. 269. The petitioner contends that the doctor testified that she should not lift objects weighing more than twenty-five pounds repeatedly or remain in a bending position for a long time and that this testimony should not be construed as meaning that she can perform the duties of her former employment, such lifting and bending being a part thereof. However, upon examination of the record, the doctor’s testimony clearly was that she should not lift objects weighing more than twenty-five pounds repeatedly or remain in a bending position for a long while. Thus, the testimony actually given is susceptible of a reasonable inference that because the duties of her prior employment as disclosed in the record required neither repeated lifting of such weights nor excessive bending, she could perform the duties thereof. The petitioner challenges also the inferential potential of the testimony of the medical witness given in response to an inquiry as to whether he would recommend that she ought to go back to work on a full-time basis even to do light work, so called. He testified, in response to this inquiry, that maybe she could, go back to work half -time for two weeks but qualified that testimony by a statement.that he did not believe this -part-time work should be extended *480 over a long period of time. It is our opinion that it may be reasonably inferred therefrom that he was contemplating that petitioner for a short time might engage in part-time work so as, to become accustomed or seasoned to the conditions of her prior employment. Dick & Carty, Joseph E. Marran, for petitioner. Matthew E. Ward, for respondent. It is our opinion that when the evidence is viewed in this light, it is clear that the commission based its negative finding that the petitioner had failed to establish a want of earning capacity on the inferences to which we above refer. In short, the commission drew reasonable inferences from the testimony of the impartial medical examiner that she could perform the duties involved in her prior employment, neither repeated lifting of heavy objects nor excessive bending being required therein. We are constrained to conclude then that the finding under challenge is supported by legally competent evidence and, therefore, will not be disturbed by this court. The petitioner’s appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the workmen’s compensation commission for further proceedings. *484 Matthew E. Ward, for Charles J. Donnelly, Inc. (respondent- in certiorari). Charles Cottam, for Donnelly Bros., Inc. and Thomas C. P. Donnelly (petitioners in certiorari).