Condon v. First National Stores

This is a petition under the workmen's compensation act, compensation being sought by the petitioner for disability alleged to have been suffered by reason of hernia, clearly recent in origin and resulting from a strain arising out of and in the course of his employment.

It was first heard and granted by the director of labor. It was later heard, on respondent's appeal, by a justice of the superior court and a decree was entered awarding compensation for temporary total and later partial disability for certain periods and at certain rates, and for medical and hospital expenses. The cause is now before us on the respondent's appeal from this decree.

According to the evidence, the petitioner was an employee of the respondent in one of its retail stores. He had been a clerk there for some years until March 9, 1936 and then manager until October 1, 1938 and then as clerk again until October 17, 1938. A part of his duties was to move articles of merchandise, some of them heavy, from one part of the store to another. In November, 1937, in lifting a hundred pound bag of sugar, he felt a sharp pain in his groin on the left side, which did not then bother him particularly. Early in the next month he went to a physician about the matter and was told by this physician that he had a hernia and was advised "not to let it go too far".

On October 17, 1938, when he consulted another physician, after suffering the breakdown which will be described infra, he told this physician about the above happening in November of the previous year, and also told him about the examination and advice of the first physician in December 1937. The first physician did not testify; but the second physician testified, in addition to the history of the case obtained from the petitioner, that he found that the petitioner at that time was afflicted with "first, the pharyngitis or smoker's throat; second, an aortic and mitral insufficiency of minimal degree; third, indirect inguinal hernia and, fourth, a right side relaxed ring."

The petitioner was not disabled by the occurrence of November 1937 and continued to work for the respondent in its store, as before, until October 17, 1938. On that day, while he was working in the store, he was taken sick, had a fainting spell and collapsed. The manager of the store had him taken to the second physician above mentioned, who prescribed a tonic and some general treatment. On November 24, 1938 he went to a hospital, where on the 28th he was operated upon for his hernia by the second physician, and remained until December 11. Thereafter he gradually improved in health. By reason of his breakdown on October 17, 1938, he was totally disabled from working for some time, and for a further period he was only partially disabled.

When the petition in this cause was filed, the statutory provisions upon which it was based were contained in public laws 1936, chapter 2358, which brought certain "occupational diseases" into the workmen's compensation act for the first time. Since the same provisions are now incorporated in the workmen's compensation act, G.L. 1938, chap. 300, art. VIII, we shall hereinafter refer to that chapter and article, which covers "occupational diseases". In § 1 of that article, the following definitions are given: "(a) The word `disability' means the state of being disabled from earning full wages at the work at which the employee was last employed; (b) The word `disablement' means the event of becoming so disabled as defined in sub-paragraph (a); (c) The term `occupational disease' means a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment." (italics ours)

Then § 2 is as follows: "The disablement of an employee resulting from an occupational disease or condition described inthe following schedule shall be treated as the happening of a personal injury by accident within the meaning of this chapter and the procedure and practice provided in this chapter shall apply to all proceedings under this article, except wherespecifically otherwise provided herein". (italics ours) Next follow thirty-one specifications of the occupational diseases and conditions covered by this § 2, including the following: "27. Hernia, clearly recent in origin and resulting from a strain, arising out of and in the course of employment and promptly reported to the employer."

The decree in this cause contains, among other things, the following findings of fact: "2. That in November, 1937, Petitioner sustained a strain arising out of and in the course of his employment, which strain resulted in a hernia. 3. That on October 17, 1938, Petitioner became disabled, as defined in the Workmen's Compensation Act, as a result of said hernia. 4. That said hernia was clearly recent in origin and promptly reported to Respondent employer which also had actual notice thereof." These findings clearly establish a causal connection between the strain of November 1937 and the disabling hernia of October 1938 and satisfy the requirements of art. VIII, § 2. It is highly significant that there is no finding by the trial justice in this decree that, as a matter of fact, the petitioner had a disabling hernia following the strain in question before October 1938. The undisputed evidence showed that, as a matter of fact, petitioner worked almost a year after the alleged hernia without missing a day.

Since the decree apparently contains all of the facts essential to a recovery, there is some question whether we should seek to discover in the rescript any other possible findings of fact which may not have been included in the decree. There is also a question whether the trial justice actually found, on the evidence, that the petitioner had in fact a hernia from strain in December 1937, as respondent contends, because the rescript as a whole rather indicates that he merely assumed that such fact "is not disputed" and then proceeded to construe and apply the pertinent section of the law. Moreover, if the trial justice actually made such a finding, there is another serious question whether there is any legal evidence of probative value to support it, since the strongest evidence on that question is merely that petitioner testified that a doctor had told him in December 1937 that he had a hernia. There is no testimony at all from that doctor; and no direct medical testimony that the petitioner had in fact such a hernia at that time.

However, if we assume, for the purpose of this opinion, that the trial justice found such a fact and that there was legal evidence of probative value to support such a finding, we then reach the question whether the trial justice erred in his interpretation and application of G.L. 1938, chap. 300, art. VIII, § 2, with particular reference to item 27. Upon such assumptions, the basic question is whether, in order to recover under art. VIII, § 2, every hernia described in item 27 must be "promptly reported to the employer", or whether only such a hernia that results in disablement of the employee must be so reported.

This article is not as clear in all respects as it probably could have been made. Apparently any construction of it, as it relates to the instant cause, is not without some possible difficulties. The respondent argues chiefly that there is no evidence to support the finding in the decree that this hernia from strain was promptly reported. Such contention is based entirely upon the assumption that such hernia must be promptly reported regardless of whether or not it resulted in the disablement of the employee. No further citation or argument to support this contention is made upon this point beyond the bare statement of the proposition.

However, presumably the best argument that can be made for the respondent's view is, in substance, that a hernia from strain is not technically an occupational disease but a mere condition; and that item 27 should therefore be treated differently from the other occupational diseases enumerated in § 2, which require a prompt report only of disablement therefrom. It is then argued that the obvious reason for including such hernias within this section was to provide the employer with the opportunity to protect himself against the resulting increased risk of having to pay compensation to such an employee, by discharging him unless the hernia is promptly corrected, or by providing other duties which would not subject the employee to possible disablement from the result of muscular abdominal strains; and that the employer could not have such opportunity and protection, if no notice of the hernia was to be given until disablement resulted therefrom. In our opinion such an interpretation is arguable although it leads to certain definite difficulties to be referred to later.

On the other hand, the petitioner contends in substance that the legislature apparently intended to distinguish between disablement from a hernia resulting from strain, which theretofore was not compensable, and disablement from other types of accidental hernia, which were and are compensable under other sections of the act; that the legislature, in effect, defined a hernia from strain as a condition in the nature of an occupational disease and, as such, expressly placed it in the same article and schedule with enumerated occupational diseases, without substantial differentiation; that thereby it was intended that such a hernia should be governed for all purposes under the act by the provisions relating to the occupational diseases as described in this article; and that there is no reason from the language or context of this article or the workmen's compensation act to refuse to give effect to that legislative intent, namely, to require a prompt report of only a disabling hernia, since disablement from occupational diseases or enumerated conditions in the nature thereof is the sole reason for the addition of this article to the act. This view also may present some difficulties in certain contingencies; but apparently the trial justice found that it was at least equally as reasonable as the interpretation advanced by the respondent and therefore he adopted it, apparently having in mind that the article and act were remedial statutes.

We are of the opinion that the trial justice's construction of this section is more consistent with the context and purpose of the workmen's compensation act and with the established rules of statutory construction than the interpretation advanced by the respondent. It is well settled as a general rule of statutory construction that the intent of the legislature, as found in the language of a statute, should be given effect if reasonably possible; and that where one of two possible constructions of a section would give reasonable effect to all of the clauses, paragraphs and other sections of the statute and the other construction would not, the former should be adopted. Blais v.Franklin, 31 R.I. 95; East Shore Land Co. v. Peckham,33 R.I. 541; Romoli v. Motta, 59 R.I. 201, 205; Ainsworth v. Saybrooke Mfg. Co.,Inc., 60 R.I. 290, 294.

We have also held repeatedly that the workmen's compensation act is a remedial statute and therefore is entitled to be construed liberally to effect its particular purposes. Donahue v. R.A. Sherman's Sons Co., 39 R.I. 373; Colli v. CrownPiece Dye Works, 55 R.I. 494; Jules Desurmont Worsted Co. v.Julian, 56 R.I. 97; Chirico v. Kappler, 61 R.I. 128, 132;Broughey v. Mowry Grain Co., 61 R.I. 221, 227. No construction, particularly of a remedial statute, should be adopted which would defeat its evident purpose. Greenough,Attorney General v. Police Commissioners, 29 R.I. 410;Kenyon v. United Electric Rys. Co., 51 R.I. 90.

Applying these principles to the instant cause, we are of the opinion that the construction contended for by the respondent would, in effect, substantially nullify the legislative intent and the particular purposes of this article, and would be contrary to the liberal construction of the workmen's compensation act. We are not considering here accidental hernia, which is compensable under other sections of the act, but only hernia from strain as described in art. VIII, § 2, which is devoted to occupational diseases or conditions in the nature thereof. We think that the respondent's interpretation of § 2 so as to require that the employee must promptly report any herniafrom strain, even though such hernia were not in fact disabling, was not intended since that might well result, in practice, in the discharge of the employee, thus depriving him of any right to ultimately recover compensation or medical expenses, notwithstanding that such hernia and expenses would result proximately from an original strain arising out of and in the course of his employment. There is no provision that such hernia, if so reported, would be corrected at the employer's expense.

Such a view would lose sight of an important purpose of the act which was to protect an injured employee and the public against the consequences that ordinarily follow an impairment or destruction of earning capacity of an employee who is disabled by injury arising out of and in the course of his employment. See Distante v. United Electric Rys. Co.,53 R.I. 258; Harvey v. Brown, 56 R.I. 34; Broughey v. Mowry GrainCo., supra. Certainly, the respondent's construction of the workmen's compensation act cannot be said to be a liberal one that is in aid of its acknowledged purpose, as is required by well-established rules and by all of our cases.

Such a construction also, in effect, would lift from its text and exclude from the operation of the other primary language in the section, an item which was evidently made an equal part of that section for the express purpose of having it treated, to all intents and purposes under the act, as in the nature of an occupational disease; and therefore to require prompt report only when disablement results, as is the case with the occupational diseases enumerated therein.

Assuming that the two constructions contended for were equally reasonable, although there appear to be greater difficulties with the respondent's contention than with the petitioner's, we are constrained by the numerous precedents in the construction of remedial statutes, and particularly in the construction of the workmen's compensation act, to adopt the more liberal construction and to hold that the trial justice's interpretation and decision were correct.

The extent to which the court has gone in liberally construing this act, particularly where the effect of a failure to give certain required notice was involved, is illustrated inDesrochers v. Atwood-Crawford Co., 47 R.I. 116, 118 andCaspar v. East Providence Artesian Well Co., 49 R.I. 8. In the instant cause there is no definite time limit fixed in § 2 for the reporting of the hernia described in item 27; and so, what is "promptly reported" becomes, in any event, a matter for reasonable determination by the trial justice upon the evidence, as any other fact. In that respect the instant cause has more in it to warrant a liberal construction than did theDesrochers and Caspar cases, supra.

A liberal construction, such as we place upon this article, deprives the employer of no right or protection to which he is entitled under the act or within its reasonably contemplated purpose. This is particularly so where, as here, the petitioner seeks compensation from actual disablement as a result of hernia from strain, where said strain, hernia and disablement all occurred well within the twenty-four months' period set out in § 4 as a special statute of limitation relating to disablement from such occupational diseases and conditions as are contemplated in §§ 1 and 2.

For the reasons stated, the appeal is denied, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.