138 A. 175 | R.I. | 1927
This is a petition filed in reliance upon the provisions of the Workmen's Compensation Act.
It was heard before a justice of the Superior Court, who gave decision and entered a decree that the petitioner, while in the employ of the respondent, received a personal injury by accident arising out of and in the course of said employment "necessitating the amputation of the distal phalange of the big toe of the left foot and the distal phalange of the little toe of the right foot." The decree further provided for the payment of compensation by the respondent to the petitioner of a sum which the justice held to be in conformity with the provisions of the Workmen's Compensation Act. From the entry of this decree the respondent appealed to this court.
It appears from the findings of the justice that the petitioner was employed by the respondent in shoveling snow from its electric car tracks; that he worked continuously from seven a.m., February 5, 1926, to seven a.m., February 6, 1926; that while so engaged his toes were frostbitten by reason of his continued exposure to the extreme cold and snow in which his work required him to stand, necessitating the amputation of the terminal phalanges of the two toes of the petitioner as set out in the decree.
The reasons of appeal upon which the respondent relies in substance are:
(1) that the petitioner was not an employee of the respondent within the meaning of the Workmen's Compensation Act in that his employment was of a casual nature;
(2) that the petitioner did not sustain personal injury by accident within the meaning of the act;
(3) that the alleged injury did not arise out of and in the course of his said employment;
(4) that the petitioner did not give the respondent proper notice of his alleged injury in accordance with the requirement of the act; *355
(5) that the petitioner is not entitled to receive separate and distinct compensation on account of the alleged injury to each toe.
Article VIII, Section 1, paragraph (b), of the act provides that the word employee "shall not include a person whose employment is of a casual nature, and who is employed otherwise than for the purpose of the employer's trade or business." The employment of the petitioner might well be regarded as casual in that the period of its continuance was uncertain and that the employment was occasional, but that circumstance is not sufficient to bar the petitioner from compensation under the act unless the employment was also not for the purpose of the employer's business. The removal of snow from the respondent's tracks was work necessary to be performed in order that the respondent might carry on its business of transportation.
The respondent's claim that the petitioner can not be said within the meaning and intent of the act to have suffered the alleged injury by accident arising out of and in the course of the employment is governed by the decision of the court inWalsh v. River Spinning Co.,
The claim that the petitioner did not give proper notice to the respondent is without merit. It appears that the petitioner by reason of his injury gave up his work and personally notified the foreman of the respondent, who had charge of the work and who had employed the petitioner, of the nature of his injury and that he was going to the hospital. The notice was sufficient under the provisions of Section 20, Article II, Chapter 92, Gen. Laws 1923, which is as follows: "Want of notice shall not be a bar to proceedings under this chapter, if it be shown that the employer or his agent had knowledge of the injury."
The respondent claims that petitioner should not have been awarded compensation at the rate of ten dollars per week for two periods of twelve weeks each under the provisions of the statute in force at that time which are as follows: "for the loss by severance of at least one phalange of a finger, thumb, or toe, one-half the average weekly wages, earnings, or salary of the injured person, but not more than ten dollars nor less than four dollars a week for a period of twelve weeks." Par. (d), Sec. 12, Art. II, Chap. 92, Gen. Laws 1923. This provision is not without ambiguity. We have, however, when possible approved a liberal construction of the provisions of the act with relation to the payment of compensation. In re J. *357 P. Coats, Inc. for an Opinion,
The respondent's reasons of appeal are overruled, the decree appealed from is approved, and the cause is remanded to the Superior Court for further proceedings.