122 R.I. 79 404 A.2d 487

404 A.2d 487.

Albert Zabbo & Sons, Inc. vs. Aniello Zabbo.

JULY 30, 1979.

Present: Bevilacqua, C.J., Joslin, Kelleher, Doris and Weisberger, JJ.

*81Joslin, J.

In this workers’ compensation proceeding the employee, a plasterer by occupation, sustained a compensable injury when he slipped from a staging and fractured his left wrist. He and his employer entered into a preliminary agreement providing for compensation benefits based on total incapacity. Not long thereafter, the employer filed a petition to review the preliminary agreement alleging alternatively that the employee’s incapacity had ended or that he was able to return to light work. A trial commissioner agreed that the employee was no longer totally incapacitated, and he ordered that payments for partial incapacity be made in accordance with the provisions of G.L. 1956 (1968 Reenactment) §28-33-18, as amended by P.L. 1974, ch. 270, §1. On the employer’s appeal, the full commission affirmed the trial commissioner’s findings of fact and orders.

On its appeal from the full commission’s decree, the employer initially argues for reversal on the ground that a copy of a medical report was admitted into evidence, over objection, without being properly authenticated. This report was prepared by Dr. A. Louis Mariorenzi who, on behalf of *82the employer’s insurer, had examined the employee to ascertain the extent of his incapacity. Even were we to agree with the employer that the admission of that report constituted error, that error would not in itself be ground for reversal of the commission’s award if there is in the record other evidence that supports the commission’s ultimate finding on the extent of the employee’s incapacity. Litchman v. Atlantic Tubing & Rubber Co., 100 R.I. 352, 359, 216 A.2d 129, 133 (1966); see 3 Larson, Workmen’s Compensation §79.00 at 15-210-11 (1976).

In this case that other evidence, to be sure, consisted principally of the employee’s own testimony that he did not feel capable of returning to work because of subjective symptoms that were at odds with medical opinions based on objective symptoms. Although in these circumstances an employee’s testimony may be suspect, it is nonetheless entitled to whatever probative force the factfinder gives it. Union Smelting 6- Refining Works v. Calhoun, 101 R.I. 655, 658, 226 A.2d 498, 500 (1967); Erbe v. A.D. Juilliard & Co., 81 R.I. 37, 41, 98 A.2d 856, 858 (1953).

Here the full commission — and it is its decree, and not the trial commissioner’s that we review — found that the employee was partially incapacitated. It relied on the employee’s testimony that he tried to return to work several times but that he “just couldn’t do it,” that he could not climb staging because he was unable to hold himself up with his left hand, and that after he attempted to do so, he felt like “someone [was] stabbing [him] right through the palm of that hand.”

The full commission also relied on the testimony of Dr. Mariorenzi contained in his deposition, instead of on the statements in the report he had prepared for the employer’s insurer. In that deposition, he testified that he felt the employee could return to gainful employment, but only if he wore “a leather gauntlet support” on his hand. His qualified opinion taken together with the employee’s testimony and the reasonable inferences of which they are susceptible *83provide the competent evidence that negates any error that might otherwise exist in the admission of Dr. Mariorenzi’s report. Their testimony and those inferences also supply a proper evidentiary basis for the commission’s finding that the employee was partially incapacitated. The existence of that basis — absent fraud, and none is alleged — preqludes us from disturbing those findings. See Mazzarella v. ITT Royal Electric Division, 120 R.I. 333, 388 A.2d 4, 7 (1978); section 28-35-30.

Finally, the employer contends that during the entire period of the employee’s alleged incapacity not only did it make the weekly payments called for by the preliminary agreement, but it also paid him $250 each week. Consequently, it argues that the total weekly payments received by the employee exceeded those to which he was legally entitled, and that therefore, pursuant to §28-35-45,1 it *84was entitled to credit for the amount of the alleged overpayments against future compensation benefits.

Edward P. Sowa, Jr. for petitioner.

Raul L. Lovett, for respondent.

That contention, if at all meritorious, depends initially on the reasons motivating the employer to continue the employee on its payroll during the period of his incapacity. Thus, for example, a weekly payment in an amount equal to salary paid by a sympathetic employer will not be deemed a disability benefit if paid, not with the intention that the payment be in lieu of compensation benefits, but rather as a voluntary gesture of gratitude for past services. Trzoniec v. General Controls Co., 100 R.I. 448, 451, 216 A.2d 886, 888 (1966); see Kilsey v. Chuck Wagon, Inc., 119 R.I. 443, 379 A.2d 919, 920 (1977); Robidoux v. Uniroyal Inc., 116 R.I. 594, 597-98, 359 A.2d 45, 47-48 (1976).

In this case, however, unlike the situation in the Trzoniec case, the evidence concerning the underlying reasons for the weekly payments of $250 is not such as to permit us to decide initially whether those payments were intended as compensation or as a gratuity. In the circumstances, fairness to both parties demands that we refrain from passing on the legal issue pending the “resolution of the doubtful factual [issue] by the commission, in whose exclusive province the Legislature has placed that duty and responsibility.” Teschner v. Horan, 118 R.I. 237, 242, 373 A.2d 173, 175 (1977).

The employer’s appeal is denied and dismissed in part, the decree appealed from is sustained in part, and the case is remanded to the commission, which shall enter a new decree containing findings concerning the reasons motivating the weekly payments. If the commission finds that the payments were intended to be in lieu of compensation, it should then decide the legal question of the employer’s entitlement to credit for excessive past payments.

Albert Zabbo & Sons, Inc. v. Zabbo
122 R.I. 79 404 A.2d 487

Case Details

Name
Albert Zabbo & Sons, Inc. v. Zabbo
Decision Date
Jul 30, 1979
Citations

122 R.I. 79

404 A.2d 487

Jurisdiction
Rhode Island

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