89-0566 (1993). TIRE SERVICE COMPANY VS. ROY S. MOORE.

• Court: Rhode Island

Rhode Island Worker Compensation January 1989 - December 1993. 89-0566 (1993). TIRE SERVICE COMPANY VS. ROY S. MOORE Term: January 1989 - December 1993W.C.C. 89-0566TIRE SERVICE COMPANY VS. ROY S. MOORESTATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. WORKERS' COMPENSATION COURT APPELLATE DIVISION DECISION OF THE APPELLATE DIVISION GILROY, J.This is the employee's appeal from a trial court decree which found the employee no longer disabled in whole or in part, from the effects of a January 20, 1986 back injury. We sustain the appeal and reverse. This case was heard at trial on the employer's petition to review alleging alternatively that the employee's incapacity had ended or diminished. In such cases it is well-established law that the employer has the burden of proof in showing that the employee's return to his job duties he was performing at the time of his injury would not be injurious to his health. Leviton Manufacturing Co., v. Lillibridge, 120 R.I. 283, 288, 387 A.2d 1034, 1037 (1978) Soprano Construction Co., Inc. v. Maia, 431 A.2d 1223, 1226 (R.I. 1981). Thus the nature of the employee's pre-injury work is crucial. The only witnesses in this case were the employee, his physician, Dr. Donald W. Cooper, and the employer's medical witness, Dr. Norbert Fleisig. The employee testified that at the time of injury he was an automobile mechanic and service manager, and his duties included changing tires, working on engines and transmissions, conducting tune ups and oil changes, saying that he "fixed cars from bumper to bumper" as a "general all-around mechanic." Dr. Donald Cooper, the employee's treating neurosurgeon, testified that in 1977 he had operated on the employee for a ruptured disc. He saw the employee again in 1986, when he suffered the work-related injury to his back which is the subject of this case. On March 16, 1986, Dr. Cooper said he performed surgery, an "[e]xcision of recurrent ruptured disc -- L-5 left" in treating the employee's work injury. As of his latest examination of the employee, on April 18, 1989, Dr. Cooper found the employee to be partially disabled, with a 10 percent permanent partial disability, as a result of the work-related injury. Dr. Cooper further testified that he knew that the employee worked as a garage mechanic, and stated that if the employee were to return to that...