59 A.2d 540 | R.I. | 1948
This is a petition for review under the workmen's compensation act, general laws 1938, chapter 300. Following a hearing in the superior court a decree was entered granting the prayer of the petition. From the entry of that decree the respondent duly appealed to this court.
It is undisputed that on or about September 8, 1944 the respondent, a milling machine operative, was disabled by a form of synovitis of the right wrist and forearm. Item 30 in the schedule under § 2, art. VIII, chap. 300, makes synovitis an occupational disease which is treated as a personal injury by accident under that article and chapter. Following such injury a preliminary agreement was entered into with the approval of the director of labor under which the respondent has been receiving $20 a week for total incapacity since September 17, 1944. The present petition was brought to review that agreement, the petitioner contending that the respondent has completely recovered from *175 her injury, while the latter contends that she is still totally incapacitated for work because of her condition.
The respondent was the only witness to testify at the hearing in the superior court. The medical evidence consisted of doctors' written reports, which were admitted in evidence by agreement of the parties. It appears of record that between September 1944 and May 1945 she was treated or examined by various doctors in Providence and that shortly thereafter she went to the Lahey Clinic in Boston, Massachusetts, for the purpose of determining whether an operation was necessary to correct her alleged condition. It is clear that for a period of about two years after her visit to the Lahey Clinic she was not treated by any doctor. However, she did seek medical advice in July 1947 while the instant case was being heard in the superior court. We will presently refer more directly to the medical evidence.
Before entering petitioner's employ the respondent had worked for more than ten years as a saleslady in a store. She did not seek any kind of work for two years prior to the hearing in the superior court. Her testimony on this point in substance was that the petitioner would not offer her lighter work which she was able to do, and that during an adjournment of that hearing at the instance of the trial justice she sought but was unable to obtain work as a saleslady when she applied for the same. The following question and answer in cross-examination is illustrative of her general attitude with reference to seeking re-employment: "Q. And you have not looked for work for over two years, have you? A. That's right. I feel that the insurance company should give me a job, — after all, I got injured there at Hemphill." It also appears that during the aforementioned period of two years she was married and had a child.
All the doctors agree that the respondent originally had an acute inflammation involving the sheaths of the extensor tendons of the right forearm, medically known as "tenosynovitis." *176 Respondent's own doctor unconditionally states in his report of March 22, 1945 that in his opinion she was "able to resume her work at this time." The final report on May 1, 1945 of an impartial examiner appointed by the director of labor says that a clinical examination of respondent's right hand, wrist, and forearm was entirely negative; that he could find no cause for the alleged swelling and no residual of such swelling; and that in his opinion she should return to work, preferably at a different job which would not require excessive use of the right hand or wrist. A letter from the Lahey Clinic, dated November 7, 1945 and signed by the doctor who had examined her there, informed the respondent that an operation was "unnecessary" to correct her condition.
While this case was pending in the superior court an impartial examiner was appointed by that court. He reported on April 10, 1947 that his examination of respondent's right hand and wrist disclosed "No abnormality of sensation * * *. Tests of nerve function showed no abnormality, and the reflexes were normal. * * * There was no evidence of residual tenosynovitis." His conclusion was that respondent's complaint of pain and inability to use her hand was "due to a prolonged period of disuse following her original disability." The doctor who examined her during the hearing in the superior court did not testify, but a certificate from him which was put in evidence by agreement states that she was then totally incapacitated and needed an operation.
The final decree of the superior court contains two findings of fact by the trial justice: first, that the petitioner had complied in all respects with the terms of the agreement between the parties; and, secondly, that the respondent was "no longer incapacitated for work as a result of her said injury by accident." It was therefore decreed that the petitioner was relieved from making further payments of compensation under the agreement until further order of the court in accordance with the provisions of the act. *177 The respondent contends that the second finding is not supported by any legal evidence and therefore constitutes an error of law that is reviewable by this court.
[1-3] Respondent's contention is based mainly upon her testimony and excludes consideration of all other material evidence in the case. We cannot agree with such contention as it does violence to a record that is clearly open to a different conclusion whenall the evidence and the reasonable inferences therefrom are fairly considered. It is not our duty to weigh the evidence. In the absence of fraud a finding of fact by a trial justice which is supported by legal evidence is binding on this court by the terms of the act. In the instant case the conflicting medical evidence, when considered in the light of respondent's conduct and general attitude in the matter as hereinbefore set forth, constituted legal evidence to support the second finding of the trial justice. Furthermore, it is pertinent to observe here, as we did in DeLallo v. Queen Dyeing Co.,
[4] In the argument before us respondent further contended that since she was disabled by an occupational disease she had no chance of securing employment because art. VIII. § 7, of the act requires her to disclose such disablement to prospective employers. The provisions of that section are inapplicable in the circumstances of this case. There is slight evidence that she really sought re-employment, and no evidence that in any such search she was required to disclose her actual or alleged condition of synovitis and that she was refused employment because of such disclosure. A different situation conceivably might arise if, in good faith, she should seek employment and be refused on that ground.
The respondent's appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings. *178
