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GTech Corp. v. Pizzitola6/30/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division on the respondent/employee's appeal from an adverse decision of the trial judge which discontinued the employee's weekly benefits based upon a finding that her incapacity for work due to an injury sustained on March 1, 2001 has ended. Pursuant to a previous court decree, it was found that the employee remained partially disabled and her condition had reached maximum medical improvement. The employee now argues that the employer failed to prove that her condition had substantially improved since that finding as required by R.I.G.L. ยง 28-29-2(8) and, therefore, the trial judge erred in granting the employer's petition to discontinue her benefits. We agree and reverse the trial judge's decision.
The employee initially began receiving weekly workers' compensation benefits pursuant to a Memorandum of Agreement dated February 1, 2002. The memorandum indicates that the employee developed right elbow tendonitis on March 1, 2001 and began receiving weekly benefits for partial incapacity as of August 9, 2001. In a pretrial order entered on July 3, 2002 in W.C.C. No. 02-02026, it was found that the employee remained partially disabled based upon the opinion of the impartial medical examiner, Dr. Steven Graff. On February 27, 2003 in W.C.C. No. 03-00913, the court, at the employer's request, found that the employee's condition had reached maximum medical improvement and her benefits were continued at the rate for partial incapacity.
The employee did not testify and the only medical evidence is the deposition, affidavit, and reports of Dr. Arnold-Peter C. Weiss, an orthopedic surgeon specializing in hand surgery. Dr. Weiss examined the employee on two (2) occasions at the request of the employer. Apparently, the employee's job involved a significant amount of computer work. In March 2001, she began to experience pain in her right forearm. The physical examination revealed only mild tenderness along the forearm muscle area. The doctor's diagnosis was mild right forearm tendonitis which he could not relate to her work activities with a reasonable degree of medical certainty. He further concluded that Ms. Pizzitola's condition had reached maximum medical improvement in that further treatment would not cause any significant improvement. Dr. Weiss stated that the employee was capable of returning to her regular job duties.
Dr. Weiss re-examined the employee on May 4, 2004. He noted that Ms. Pizzitola had moved to Connecticut and taken a job in a doctor's office which involved "quite a bit of data entry and phone work." The employee told him that she still had some aching in her right forearm which was unchanged from the last examination. The doctor again detected some mild tenderness along the forearm musculature, but the remainder of the examination was unremarkable. He reiterated that her condition was at maximum medical improvement and that she had a three percent (3%) impairment rating. In a subsequent letter dated May 13, 2004, Dr. Weiss stated that the employee could return to her regular work activities without any restrictions.
The trial judge, citing Costello v. Narragansett Elec. Co., 623 A.2d 441 (R.I. 1993), found that the employer did not need to prove that there had been a substantial improvement in the employee's condition through the introduction of comparative medical evidence in order to discontinue her benefits on the ground that her incapacity has ended. Consequently, she accepted the opinions of Dr. Weiss that the employee could perform the duties of her regular job and discontinued the employee's weekly benefits. The employee then filed her claim of appeal.
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