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Gorman v. New Durham Steel11/30/2005
DECISION OF THE APPELLATE DIVISION
These two (2) matters were consolidated at the trial level for hearing and decision and remain consolidated at the appellate level. The two (2) cases are original petitions filed by the employee against the company who employed her, New Durham Steel (hereinafter "New Durham"), and against the general contractor, Marathon Construction (hereinafter "Marathon"). The trial judge concluded that Marathon had complied with R.I.G.L. § 28-29-6.1 and therefore could not be held liable for the employee's injuries. New Durham was found liable for a period of partial incapacity from December 27, 2000 to August 13, 2001. After considering the arguments of the parties on appeal, we deny the appeals and affirm the decision and decrees of the trial judge.
W.C.C. No. 01-01030 is an original petition in which the employee alleges that she sustained injuries to her right knee and right shin on December 26, 2000 while employed by New Durham, which resulted in total incapacity beginning December 27, 2000. At the pretrial conference, the petition was denied and the employee claimed a trial in a timely manner.
W.C.C. No. 01-01029 is an original petition containing the same allegations and filed against Marathon. Marathon was the general contractor for the construction of a Home Depot in North Kingstown, Rhode Island. Marathon entered into a contract with Jay Steel to do the steel and iron work on the project. Jay Steel, which was primarily a steel and iron supplier, in turn, contracted with New Durham to actually do the work on the job site. At the pretrial conference, the trial judge ordered Marathon to pay the employee weekly benefits from December 27, 2000 and continuing due to an injury to her right knee. The trial judge found that Marathon had failed to obtain written documentation that New Durham had insurance in place and was therefore deemed to be the employee's employer pursuant to the provisions of R.I.G.L. § 28-29-6.1. Marathon filed a timely claim for a trial.
The parties entered a stipulation of facts as follows: "1. The Employee, Kathleen Gorman, was an employee of New Durham Steel. "2. The Employee's date of birth is August 9, 1963. The employee has zero dependents. "3. On December 26, 2000, the Employee injured her right knee while in the employ of New Durham Steel. "4. At the time of her injury the Employee's average weekly wage was $982.00. "5. As a result of the December 26, 2000 injury, the employee was partially incapacitated from work from December 27, 2000 to August 13, 2001.
"6. On August 14, 2001 the Employee returned to work for a different employer, earning wages equal to or in excess of her pre-injury wage with New Durham Steel. "7. The Employee has undergone medical treatment for her right knee, which treatment was reasonable and necessary in order to care, cure or rehabilitate the Employee from the effects of her work injury." (Jt. Exh. 1.)
While the trial was pending, Travelers Indemnity Company (hereinafter "Travelers") filed a motion to intervene in the proceedings. Travelers had written an insurance policy for New Durham while the company was working at the Home Depot site, but there were some questions as to coverage for this incident. As a result, Travelers' interest in the matter was distinct from its insured, which had separate counsel. It should be noted that counsel for Travelers did not sign off on the stipulation of facts submitted by the other parties, although counsel repeatedly recognized in memoranda to the court and statements before the court that there appeared to be no dispute that the employee sustained a work-related injury and had a period of disability.
The on
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