
    Domenic Capasso vs. Firesafe Builders Products Corp.
    NOVEMBER 26, 1948.
    Present: Flynn, C. J., Capotosto, Baker, Condon and O’Connell, JJ.
   Capotosto, J.

This is an original petition under the workmen’s compensation act,' general laws 1938, chapter 300, by an employee seeking compensation for partial incapacity for an alleged back injury resulting from two distinct accidents arising out of and in the course of his employment by the same respondent. The petition alleges that he was injured as the result of an “electric shock” on November 5, 1944, and that on July 14, 1945 he hurt the lower part of his back and side while “lifting tools.” The Massachusetts Bonding and Insurance Company was respondent’s insurance carrier in November 1944 and The Travelers Insurance Company was such carrier in July 1945. After a hearing in the superior court a decree was entered denying and dismissing the petition, whereupon the petitioner duly prosecuted his appeal therefrom to this court.

There is no evidence in petitioner’s case to support the allegation in his petition that he sustained a compensable injury as a result of an accident while lifting tools. Notwithstanding this the respondent proceeded to a full hearing on the merits contending: first, that there was no second accident, as claimed by the petitioner; and, secondly, that his ailment, if any, was not the result of an accident but was due to disease induced by the unfavorable conditions under which he had worked for a long period of time. It appears in evidence that before entering respondent’s employ and there learning welding in connection with wartime work, the petitioner had theretofore worked at light, sedentary employment in factories that were heated in cold weather. The place where the petitioner worked for the respondent as a welder on pontoons was damp and unheated.

Whether the petitioner had an accident in July 1945 rests entirely upon the credibility of his own testimony. He testified in substance that on November 5, 1944 he injured the lower part of his back when he struck the edge of a pontoon while falling backwards to the ground as the result of an electric shock from a welding machine that he was using. On that occasion the nurse in respondent’s first-aid room treated him for bruises on his left hand and also gave him some ointment for his back. He returned to his ordinary work without loss of time and thereafter continued to be regularly so employed, even working overtime when required.

The petitioner further testified that in July 1945 he again injured the. lower part of his back when, in descending from the top of a pontoon where he was working with another welder named Buffi, he stepped on a stool which tilted and threw him backwards against the edge of a nearby pontoon. He then said to Buffi: “Gee, I won’t be able to work.” Whereupon the latter, who according to the petitioner did not notice the “spill” as Buffi “was on the other side,” advised him to report to the foreman and then go to the first-aid room, which he did. He could not recall the name of the foreman, nor was he at all certain as to the date of the accident, although he finally fixed it as July 14, 1945. When closely questioned on cross-examination as to why he came to fix that date his testimony was as follows: “They told me I got to remember the dates. Q. They told you you had to have some date, didn’t they? A. Some date, that is right, to start anything.”

Fred DiNapoli, the petitioner’s foreman, testified that he received no report of an accident from the petitioner in July 1945. The nurse in charge of the first-aid room testified that her only knowledge concerning the matter was by reference to her entries in respondent’s accident report, which she produced and used while testifying. In this report, which was undated, the date of injury was “7-9-45,” and the petitioner’s complaint was described as follows: “Employee believes that he sprained his back by working in the pontoon room.”

The record is clear that the nurse sent the petitioner to Dr. Paul J. Rozzero, but when she did so is uncertain. However, the doctor, using his office records, testified that the petitioner came to him on July 12, 1945 complaining of pain “About the mid back” but gave him no history of any accident. On examination the doctor could find no objective evidence of injury but he strapped petitioner’s back and told him to return to work.

On-July 17, 1945 the petitioner consulted Dr. Simon G; Lenzner. His testimony was to the effect that the petitioner gave him a history of the two accidents hereinbefore mentioned; that the only objective symptom of injury found by him on examination was some “spasm” of certain muscles of the back; that at first he attributed his complaint to a nontraumatic kidney ailment and treated him accordingly; that he later had the petitioner X-rayed by Dr. Eugene A. Field and examined by Dr. Americo A. Savastano, an orthopedic specialist; and that since the examinations of those two doctors were negative objectively, he finally decided that the petitioner was suffering from “a traumatic myofascitis of the muscles of the spine,” which condition could be attributed to either accident.

In the course of a lengthy cross-examination Dr. Lenzner testified that petitioner’s condition at the time of his examination was not an “acute case” of injury; that under those circumstances the spasm of the muscles of the back was not always indicative of a traumatic injury but was also consistent with disease from natural causes; and that myofascitis could be due' to working for a long period in a damp, unheated place. In his office records the date of the second accident appears as “3 wks. prior to 7/17/45.” In a letter to the respondent’s insurer under date of August 30, 1945 the doctor, referring to the history that he had received from the petitioner, stated that.the latter had “been complaining of pain in his back for the past year, or since last winter when he claims that he fell off a pontoon while at work. * * * The diagnosis of traumatic myositis does not seem appropriate since this pain has lasted such a long period of time.” On being asked why' he failed to mention the second accident in this letter his answer was: “Because I wasn’t concerned with the recent accident, that is why. I didn’t even give it a thought. That didn’t concern me.”

Doctor Savastano, who was called as a witness by the respondent, testified that the petitioner told him that he had been in two accidents while working for the respondent, one in November 1944 and the other on June 17, 1945. The only evidence of back injury found by Dr. Savastano was a slight limitation of forward bending. The substance of his medical opinion was that, in the absence of any other cause, petitioner’s back condition could be attributed to an accident, but he also testified that such condition was not necessarily of traumatic origin and that it could be caused by working for some two years in a cold, damp place, as this petitioner had done.

The substance of testimony by Dr. William H. Palmer, who examined the petitioner in behalf of the respondent on July 27, 1945, was that his only complaint was lameness in the lower back on arising from bed; that such lameness had troubled him “for about a year previously”; and that he had consulted Dr. Y. J. Oddo as recently as July 9, 1945 for that condition. Doctor Palmer, who found nothing of an objective nature to explain petitioner’s complaint, further positively testified that he received no history of injury by accident from him. There was evidence, however, from the petitioner himself that on or about June 9, 1945 he had consulted Dr. Oddo for pain in the back, tentatively attributed to a cold or some kidney ailment. Doctor Oddo did not testify.

We have referred to the testimony in some detail to make it clear that the evidence was conflicting and open to reasonable inferences which could fairly lead to different and opposite conclusions, especially since credibility was an important question at issue. On the evidence before him, which was further conflicting or contradictory on matters not hereinbefore mentioned by us, the trial justice made two findings: first, that although the petitioner had sustained an injury by accident on November 5, 1944, he had failed to prove by a fair preponderance of the credible evidence that such injury was compensable; and, secondly, that he had failed to prove “by a fair preponderance of the credible evidence that he sustained an injury by accident arising out of and in the course of his employment on or about the 14th day. of July, 1945, while in the employ of the respondent corporation.”

To prevail in this court the petitioner, who makes no claim of fraud, has the burden of showing that the findings of fact by the trial justice are not supported by any legal evidence. If there is such evidence, his findings are binding upon us by force of the act. The suggestion by his counsel that the contradictions in petitioner’s testimony as they appear of record were the result of confusion due to his limited education is not' a matter for our consideration. Were we to entertain such suggestion we would in effect be passing on the weight and credibility of his testimony. The resolution of that question falls within the realm of fact finding in which the action of the trial justice is conclusive. The weight of all the evidence as well as the credibility of the petitioner and the other witnesses were matters for the consideration solely of the trial justice. Rosewater v. Jean’s Inc., 72 R. I. 489. Referring more particularly to petitioner’s alleged accident of July 1945, the trial justice was not bound to accept his testimony on that point as true and treat it as undisputed evidence, even though the respondent produced no direct evidence in conflict with such testimony, when, as here, other facts and circumstances raised a fair question of his credibility. Parmentier v. Moore Fabric Co., 71 R. I. 369.

After a careful consideration of the entire record, we are unable to say that the findings by the trial justice are not supported by legal evidence, and therefore we cannot disturb them.

Roger L. McCarthy, for petitioner.

Boss & Cordon, Francis W. Conlan, for respondent.

Carroll & Dwyer, Edward F. J. Dwyer, for Massachusetts Bonding and Insurance Company.

The petitioner’s appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.

J. Frederick Murphy, Aram A. Arabian, for petitioners.

John H. Nolan, Attorney General, Archie Smith, Assistant Attorney General, Edwards & Angelí, William H. Edwards, Gerald W. Harrington, Edward F. Hindle, for respondents.  