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Cabral v. Crystal Brands11/30/2005
DECISION OF THE APPELLATE DIVISION
This matter is before the Appellate Division pursuant to an order issued to the parties to appear and show cause why the appeal should not be summarily decided based upon the principle articulated in Parenteau v. Zimmerman Eng'g, 111 R.I. 68, 299 A.2d 168 (1973). After reviewing the record and considering the arguments of the parties, we find that cause has not been shown and we will proceed to render our decision in this matter without further argument.
On March 21, 1991, the employee sustained injuries to her left knee, upper leg, buttocks, and left wrist. She received weekly workers' compensation benefits for partial incapacity pursuant to a Memorandum of Agreement dated May 13, 1991. Subsequently, the left and right shoulders and the neck were added to the description of her injuries. On November 9, 1994, a consent decree was entered in W.C.C. No. 94-01950 which established an earning capacity of One Hundred Twenty-seven and 60/100 ($127.60) Dollars per week as a result of an offer of suitable alternative employment. Ms. Cabral actually returned to work in this suitable alternative employment position for a period of time until she was terminated by the employer on January 15, 1999. The employer was ordered by the court to reinstate the employee's weekly benefits at the full rate for partial incapacity as the employer was unable to prove that the termination was due to misconduct on the part of the employee.
In W.C.C. No. 97-07436, the court found on January 7, 1998 that the employee's condition had reached maximum medical improvement. In W.C.C. No. 98-06441, the employee's petition requesting a finding of total disability pursuant to R.I.G.L. § 28-33-17(b)(2) was denied and dismissed on the grounds that the language she was attempting to rely upon applied only to injuries occurring on or after May 18, 1992.
The present case arises from the employee's petition to review requesting that the court order the continuation of the payment of weekly benefits for partial incapacity beyond the three hundred and twelve (312) week period in accordance with R.I.G.L. §§ 28-33-18.3(a)(1) and 28-33-18(d). The employer had notified Ms. Cabral that her weekly benefits would be discontinued on October 22, 1999 pursuant to the statute. The trial judge denied the petition at the pretrial conference and the employee duly claimed a trial. The trial judge, in a decree entered on January 21, 2005, found that the employee failed to establish by a fair preponderance of the credible evidence that her partial disability resulting from the work injury posed a material hindrance to obtaining employment suitable to her limitations. Accordingly, the trial judge denied the employee's request and ordered the employer to discontinue the payment of weekly benefits as of October 12, 1999. The employee then filed a claim of appeal.
The employee did not submit a transcript of any portion of the trial in this matter. The recitation of facts in this decision has been gleaned from the trial judge's decision.
Ms. Cabral was fifty-nine (59) years old at the time of her testimony and had been receiving Social Security Disability Insurance benefits since 1994. She was employed at Monet for seventeen (17) years carding jewelry, bagging jewelry, and filling orders. She stated that she performed part-time suitable alternative employment as a packer until she was terminated in 1996. Since that time, she has not sought any other type of employment.
The employee earned her General Education Diploma (G.E.D.) in the United States and attended a secretarial course for three (3) months in or around 1992. She left that program before complet
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