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Marriott v. D'Anzi9/30/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the appeal of the petitioner/employer from a trial judge's decision and decree on the employer's petition to review. The petition alleged that the employee's incapacity had ended, and that the employee committed fraud in violation of the provisions of R.I.G.L. § 28-33-17.2 and § 28-33-17.3. The trial judge agreed that the employee was no longer disabled and discontinued his weekly benefits. However, he concluded that the employer had failed to prove the fraud allegation. The employer has filed this appeal, arguing that the trial judge failed to properly apply the fraud statutes. After careful consideration of the arguments of the parties and a thorough review of the record, we affirm the conclusions of the trial judge and deny the employer's appeal.
Pursuant to R.I.G.L. § 28-35-28(b), a trial judge's findings on factual matters are final unless found to be clearly erroneous. See Diocese of Providence v. Vaz, 679 A.2d 879 (R.I. 1996). The Appellate Division is entitled to conduct a de novo review only when a finding is made that the trial judge was clearly wrong. Id.; Grimes Box Co. v. Miguel, 509 A.2d 1002 (R.I. 1986). Such review however, is limited to the record made before the trial judge.Vaz, supra, (citing Whittaker v. Health-Tex Inc., 440 A.2d 122 (R.I. 1982)).
Cognizant of this legal duty imposed upon us, we have carefully reviewed the entire record. For the reasons set forth, we affirm the trial judge's decision and decree.
The employee worked for the employer as a janitor in a Providence, Rhode Island high school. He was injured on October 10, 1997 when a steel trash can fell on his left foot. A Memorandum of Agreement documented his injury as "left foot inflammation," which resulted in partial disability beginning November 16, 1997.
In support of the fraud allegation, the employer offered the testimony and reports of Richard Delmastro and John Leonard, private investigators who were hired by the employer to conduct surveillance of the employee's activities. Mr. Delmastro testified he first observed the employee on March 19, 1998. On that occasion, he followed the employee into the St. Anthony's Society Club (hereinafter "St. Anthony's"), where he saw the employee tending bar, taking food orders, serving lunch to customers, accepting payments and washing glasses. The employee was not always in sight during the surveillance, neither on this particular date nor on other dates when he was observed in the club, but Mr. Delmastro stated when he was within sight he was never sitting down. He never, on any occasion, observed the employee simply sitting, eating, talking and playing cards. When Mr. Delmastro first observed the employee on March 19th, he noticed a slight limp, but he never saw a limp again.
On March 26, 1998, Mr. Delmastro again entered St. Anthony's between the hours of noon and 2:00 p.m. and observed the employee performing the same activities he had witnessed on March 19. During the thirty (30) minutes he was inside St. Anthony's, Mr. Delmastro did not see the employee sit down at all. On three (3) more dates in April, Mr. Delmastro observed the employee in St. Anthony's undertaking the same activities as on his first visit. He observed the employee for twenty (20) to thirty-five (35) minutes each time and never saw him off his feet or walking with a limp. Photographs and video taken of the employee by Mr. Delmastro on certain days were admitted into evidence.
Mr. Leonard testified that he observed the employee on June 24, 1998 and August 3, 1998 at St. Anthony's tending bar, setting tables, taking orders and serving food.
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